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    CITY OF BURBANK v. LOCKHEED AIR TERMINAL, 411 U.S. 624 (1973)

    U.S. Supreme Court

    CITY OF BURBANK v. LOCKHEED AIR TERMINAL, 411 U.S. 624 (1973)

    411 U.S. 624

    CITY OF BURBANK ET AL. v. LOCKHEED AIR TERMINAL, INC., ET AL.
    APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

    No. 71-1637.

    Argued February 20, 1973
    Decided May 14, 1973

    Appellees sought an injunction against enforcement of a Burbank city ordinance placing an 11 p. m. to 7 a. m. curfew on jet flights from the Hollywood-Burbank Airport. The District Court found the ordinance unconstitutional on Supremacy Clause and Commerce Clause grounds, and the Court of Appeals affirmed on the basis of the Supremacy Clause, with respect to both pre-emption and conflict. Held: In light of the pervasive nature of the scheme of federal regulation of aircraft noise, as reaffirmed and reinforced by the Noise Control Act of 1972, the Federal Aviation Administration, now in conjunction with the Environmental Protection Agency, has full control over aircraft noise, pre-empting state and local control. Pp. 626-640.

    457 F.2d 667, affirmed.

    DOUGLAS, J., delivered the opinion of the Court, in which BURGER. C. J., and BRENNAN, BLACKMUN, and POWELL, JJ., joined. REHNQUIST, J., filed a dissenting opinion, in which STEWART, WHITE, and MARSHALL, JJ., joined, post, p. 640.

    Richard L. Sieg, Jr., argued the cause for appellants. With him on the briefs was Samuel Gorlick.

    Warren Christopher argued the cause for appellees. With him on the briefs was Ralph W. Dau.

    Deputy Solicitor General Friedman argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Griswold, Assistant Attorney General Wood, Andrew L. Frey, and John W. Barnum. Nicholas C. Yost, Deputy Attorney General, argued the cause for the Attorney General of California as amicus curiae urging reversal. With him on the brief were Evelle J. Younger, Attorney General, pro se, Jay L. [411 U.S. 624, 625]   Shavelson, Assistant Attorney General, and Larry C. King, Deputy Attorney General. *  

    [ Footnote * ] Briefs of amici curiae urging affirmance were filed by Patrick J. Falvey, Joseph Lesser, Isobel E. Muirhead, and Vigdor D. Bernstein for the Port Authority of New York and New Jersey; by Robert D. Powell for the National Business Aircraft Association, Inc.; and by Samuel J. Cohen for the Air Line Pilots Association, International.

    MR. JUSTICE DOUGLAS delivered the opinion of the Court.

    The Court in Cooley v. Board of Wardens, 12 How. 299, first stated the rule of pre-emption which is the critical issue in the present case. Speaking through Mr. Justice Curtis, it said:

    This suit brought by appellees asked for an injunction against the enforcement of an ordinance adopted by the City Council of Burbank, California, which made it unlawful for a so-called pure jet aircraft to take off from the Hollywood-Burbank Airport between 11 p. m. of one day and 7 a. m. the next day, and making it unlawful for the operator of that airport to allow any such aircraft [411 U.S. 624, 626]   to take off from that airport during such periods. 1 The only regularly scheduled flight affected by the ordinance was an intrastate flight of Pacific Southwest Airlines originating in Oakland, California, and departing from Hollywood-Burbank Airport for San Diego every Sunday night at 11:30.

    The District Court found the ordinance to be unconstitutional on both Supremacy Clause and Commerce Clause grounds. 318 F. Supp. 914. The Court of Appeals affirmed on the grounds of the Supremacy Clause both as respects pre-emption and as respects conflict. 2 457 F.2d 667. The case is here on appeal. 28 U.S.C. 1254 (2). We noted probable jurisdiction. 409 U.S. 840 . We affirm the Court of Appeals.

    The Federal Aviation Act of 1958, 72 Stat. 731, 49 U.S.C. 1301 et seq., as amended by the Noise Control Act of 1972, 86 Stat. 1234, and the regulations under it, 14 CFR pts. 71, 73, 75, 77, 91, 93, 95, 97, are central to the question of pre-emption.

    Section 1108 (a) of the Federal Aviation Act, 49 U.S.C. 1508 (a), provides in part, "The United States of America is declared to possess and exercise complete and [411 U.S. 624, 627]   exclusive national sovereignty in the airspace of the United States . . . ." By 307 (a), (c) of the Act, 49 U.S.C. 1348 (a), (c), the Administrator of the Federal Aviation Administration (FAA) has been given broad authority to regulate the use of the navigable airspace, "in order to insure the safety of aircraft and the efficient utilization of such airspace . . ." and "for the protection of persons and property on the ground . . . ." 3  

    The Solicitor General, though arguing against pre-emption, concedes that as respects "airspace management" there is pre-emption. That, however, is a fatal concession, for as the District Court found: "The imposition of curfew ordinances on a nationwide basis would result in a bunching of flights in those hours immediately preceding the curfew. This bunching of flights during these hours would have the twofold effect of increasing an already serious congestion problem and actually increasing, rather than relieving, the noise problem by increasing flights in the period of greatest annoyance to surrounding communities. Such a result is totally inconsistent with the objectives of the federal statutory [411 U.S. 624, 628]   and regulatory scheme." It also found "[t]he imposition of curfew ordinances on a nationwide basis would cause a serious loss of efficiency in the use of the navigable airspace."

    Curfews such as Burbank has imposed would, according to the testimony at the trial and the District Court's findings, increase congestion, cause a loss of efficiency, and aggravate the noise problem. FAA has occasionally enforced curfews. See Virginians for Dulles v. Volpe, 344 F. Supp. 573. But the record shows that FAA has consistently opposed curfews, unless managed by it, in the interests of its management of the "navigable airspace."

    As stated by Judge Dooling in American Airlines v. Hempstead, 272 F. Supp. 226, 230, aff'd, 398 F.2d 369:

    The Noise Control Act of 1972, which was approved October 27, 1972, provides that the Administrator "after consultation with appropriate Federal, State, and local agencies and interested persons" shall conduct a study of various facets of the aircraft noise problems and report to the Congress within nine months, 4 i. e., by July 1973. The 1972 Act, by amending 611 of the Federal [411 U.S. 624, 629]   Aviation Act, 5 also involves the Environmental Protection Agency (EPA) in the comprehensive scheme of federal control of the aircraft noise problem. Under the amended 611 (b) (1), 86 Stat. 1239, 49 U.S.C. 1431 (b) (1) (1970 ed., Supp. II), FAA, after consulting with EPA, shall provide "for the control and abatement of aircraft noise and sonic boom, including the application of such standards and regulations in the issuance, amendment, modification, suspension, or revocation of any certificate authorized by this title." 6 Section 611 [411 U.S. 624, 630]   (b) (2), as amended, 86 Stat. 1239, 49 U.S.C. 1431 (b) (2) (1970 ed., Supp. II), provides that future certificates for aircraft operations shall not issue unless the new aircraft noise requirements are met. 7 Section 611 (c) (1), as amended, provides that not later than July 1973 EPA shall submit to FAA proposed regulations to provide such "control and abatement of aircraft noise and sonic boom" as EPA determines is "necessary to protect the public health and welfare." FAA is directed within 30 days to publish the proposed regulations in a notice of proposed rulemaking. Within 60 days after that publication, FAA is directed to commence a public hearing on the proposed rules. Section 611 (c) (1). That subsection goes on to provide that within "a reasonable time after the conclusion of such hearing and after consultation with EPA," FAA is directed either to prescribe the regulations substantially as submitted by EPA, or prescribe them in modified form, or publish in the Federal Register a notice that it is not prescribing any regulation in response to EPA's submission together with its reasons therefor.

    Section 611 (c) (2), as amended, also provides that if EPA believes that FAA's action with respect to a regulation proposed by EPA "does not protect the public [411 U.S. 624, 631]   health and welfare from aircraft noise or sonic boom," EPA shall consult with FAA and may request FAA to review and report to EPA on the advisability of prescribing the regulation originally proposed by EPA. That request shall be published in the Federal Register; FAA shall complete the review requested and report to EPA in the time specified together with a detailed statement of FAA's findings and the reasons for its conclusion and shall identify any impact statement filed under 102 (2) (C) of the National Environmental Policy Act of 1969, 8 83 Stat. 853, 42 U.S.C. 4332 (2) (c), [411 U.S. 624, 632]   with respect to FAA's action. FAA's action, if adverse to EPA's proposal, shall be published in the Federal Register.

    Congress did not leave FAA to act at large but provided in 611 (d), as amended, particularized standards:

    The original complaint was filed on May 14, 1970; the District Court entered its judgment November 30, 1970; and the Court of Appeals announced its judgment [411 U.S. 624, 633]   and opinion March 22, 1972 - all before the Noise Control Act of 1972 was approved by the President on October 27, 1972. That Act reaffirms and reinforces the conclusion that FAA, now in conjunction with EPA, has full control over aircraft noise, pre-empting state and local control.

    There is, to be sure, no express provision of pre-emption in the 1972 Act. That, however, is not decisive. As we stated in Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 :

    It is the pervasive nature of the scheme of federal regulation of aircraft noise that leads us to conclude that there is pre-emption. As Mr. Justice Jackson stated, concurring in Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 303 :

    Both the Senate and House Committees included in their Reports clear statements that the bills would not change the existing pre-emption rule. The House Report stated: 9 "No provision of the bill is intended to alter in any way the relationship between the authority of the Federal Government and that of the State and local governments that existed with respect to matters covered by section 611 of the Federal Aviation Act of 1958 prior to the enactment of the bill." The Senate Report stated: 10 "States and local governments are pre-empted from establishing or enforcing noise emission standards for aircraft unless such standards are identical to standards prescribed under this bill. This does not address responsibilities or powers of airport operators, and no provision of the bill is intended to alter in any way the relationship between the authority of the Federal government and that of State and local governments that existed with respect to matters covered by section 611 of the Federal Aviation Act of 1958 prior to the enactment of the bill."

    These statements do not avail appellants. Prior to the 1972 Act, 611 (a) provided that the Administrator "shall prescribe and amend such rules and regulations as he may find necessary to provide for the control and abatement of aircraft noise and sonic boom." 82 Stat. 395. Under 611 (b) (3) the Administrator was required to "consider whether any proposed standard, [411 U.S. 624, 635]   rule, or regulation is consistent with the highest degree of safety in air commerce or air transportation in the public interest." 82 Stat. 395. When the legislation which added this section to the Federal Aviation Act 11 was considered at Senate hearings, Senator Monroney (the author of the 1958 Act) asked Secretary of Transportation Boyd whether the proposed legislation would "to any degree preempt State and local government regulation of aircraft noise and sonic boom." 12 The Secretary requested leave to submit a written opinion, and in a letter dated June 22, 1968, he stated:

    According to the Senate Report, 13 it was "not the intent of the committee in recommending this legislation to effect any change in the existing apportionment of powers between the Federal and State and local governments," and the Report concurred in the views set forth by the Secretary in his letter. 14   [411 U.S. 624, 636]  

    The Senate version of the 1972 Act as it passed the Senate contained an express pre-emption section. 15 But the Senate version never was presented to the House. Instead, the Senate passed, with amendments, the House version; 16 the House, also with amendments, then concurred in the Senate amendments. 17 The Act as passed combined provisions of both the House and Senate bills on the subject that each had earlier approved. When the blended provisions of the present Act were before the House, Congressman Staggers, Chairman of the House Committee on Interstate and Foreign Commerce, in urging the House to accept the amended version, said: 18  

    When the House approved the blended provisions of the bill, Senator Tunney moved that the Senate concur. He made clear 19 that the regulations to be considered by EPA for recommendation to FAA would include:

    The statements by Congressman Staggers and Senator Tunney are weighty ones. For Congressman Staggers was Chairman of the House Committee on Interstate and Foreign Commerce which submitted the Noise Control Act and Report; and Senator Tunney was a member of the Senate Committee on Public Works, which submitted the Act and Report.

    When the President signed the bill he stated that "many of the most significant sources of noise move in [411 U.S. 624, 638]   interstate commerce and can be effectively regulated only at the federal level." 20  

    Our prior cases on pre-emption are not precise guidelines in the present controversy, for each case turns on the peculiarities and special features of the federal regulatory scheme in question. Cf. Hines v. Davidowitz, 312 U.S. 52 ; Huron Portland Cement Co. v. Detroit, 362 U.S. 440 . Control of noise is of course deep-seated in the police power of the States. Yet the pervasive control vested in EPA and in FAA under the 1972 Act seems to us to leave no room for local curfews or other local controls. What the ultimate remedy may be for aircraft noise which plagues many communities and tens of thousands of people is not known. The procedures under the 1972 Act are under way. 21 In addition, the Administrator has imposed a variety of regulations relating to takeoff and landing procedures and runway preferences. The Federal Aviation Act requires a delicate balance between safety and efficiency, 49 U.S.C. 1348 (a), and the protection [411 U.S. 624, 639]   of persons on the ground. 49 U.S.C. 1348 (c). Any regulations adopted by the Administrator to control noise pollution must be consistent with the "highest degree of safety." 49 U.S.C. 1431 (d) (3). The interdependence of these factors requires a uniform and exclusive system of federal regulation if the congressional objectives underlying the Federal Aviation Act are to be fulfilled.

    If we were to uphold the Burbank ordinance and a significant number of municipalities followed suit, it is obvious that fractionalized control of the timing of takeoffs and landings would severely limit the flexibility of FAA in controlling air traffic flow. 22 The difficulties of scheduling flights to avoid congestion and the concomitant decrease in safety would be compounded. In 1960 FAA rejected a proposed restriction on jet operations at the Los Angeles airport between 10 p. m. and 7 a. m. because such restrictions could "create critically serious problems to all air transportation patterns." 25 Fed. Reg. 1764-1765. The complete FAA statement said:

    This decision, announced in 1960, remains peculiarly within the competence of FAA, supplemented now by the input of EPA. We are not at liberty to diffuse the powers given by Congress to FAA and EPA by letting the States or municipalities in on the planning. If that change is to be made, Congress alone must do it.

    Footnotes

    [ Footnote 1 ] Burbank Municipal Code 20-32.1. The ordinance provides an exception for "emergency" flights approved by the City Police Department.

    [ Footnote 2 ] The Court of Appeals held that the Burbank ordinance conflicted with the runway preference order, BUR 7100.5B, issued by the FAA Chief of the Airport Traffic Control Tower at the Hollywood-Burbank Airport. The order stated that "[p]rocedures established for the Hollywood-Burbank airport are designed to reduce community exposure to noise to the lowest practicable minimum. . . ." The Court of Appeals concluded that the ordinance "interferes with the balance set by the FAA among the interests with which it is empowered to deal, and frustrates the full accomplishment of the goals of Congress." 457 F.2d 667, 676. In view of our disposition of this appeal under the doctrine of pre-emption, we need not reach this question.

    [ Footnote 3 ] Section 307 provides in relevant part as follows:

    [ Footnote 4 ] Section 7 (a) provides:

    [ Footnote 5 ] Section 611 of the Federal Aviation Act, 49 U.S.C. 1431, was added in July 1968. Act of July 21, 1968, Pub. L. 90-411, 82 Stat. 395. Prior to amendment by the 1972 Act, it provided in part that the Administrator, "[i]n order to afford present and future relief and protection to the public from unnecessary aircraft noise and sonic boom, . . . shall prescribe and amend such rules and regulations as he may find necessary to provide for the control and abatement of aircraft noise and sonic boom." 49 U.S.C. 1431 (a).

    [ Footnote 6 ] Section 611 (b) (1), as amended, reads:

    [ Footnote 7 ] Subsection (b) (2) provides:

    [ Footnote 8 ] Section 102 reads in part as follows:

    Section 611 (c) (3) of the Federal Aviation Act, as amended, provides that if FAA files no statement under 102 (2) (C) of the National Environmental Policy Act "then EPA may request the FAA to [411 U.S. 624, 632]   file a supplemental report, which shall be published in the Federal Register within such a period as EPA may specify (but such time specified shall not be less than ninety days from the date the request was made), and which shall contain a comparison of (A) the environmental effects (including those which cannot be avoided) of the action actually taken by the FAA in response to EPA's proposed regulations, and (B) EPA's proposed regulations."

    [ Footnote 9 ] H. R. Rep. No. 92-842, p. 10.

    [ Footnote 10 ] S. Rep. No. 92-1160, pp. 10-11.

    [ Footnote 11 ] See n. 5, supra.

    [ Footnote 12 ] Hearing before the Aviation Subcommittee of the Senate Committee on Commerce on S. 707 and H. R. 3400, Aircraft Noise Abatement Regulation, 90th Cong., 2d Sess., 29.

    [ Footnote 13 ] S. Rep. No. 1353, 90th Cong., 2d Sess., 6.

    [ Footnote 14 ] The letter from the Secretary of Transportation also expressed the view that "the proposed legislation will not affect the rights of a State or local public agency, as the proprietor of an airport, from issuing regulations or establishing requirements as to the permissible level of noise which can be created by aircraft using the [411 U.S. 624, 636]   airport. Airport owners acting as proprietors can presently deny the use of their airports to aircraft on the basis of noise considerations so long as such exclusion is nondiscriminatory." (Emphasis added.) This portion as well was quoted with approval in the Senate Report. Ibid.

    Appellants and the Solicitor General submit that this indicates that a municipality with jurisdiction over an airport has the power to impose a curfew on the airport, notwithstanding federal responsibility in the area. But, we are concerned here not with an ordinance imposed by the City of Burbank as "proprietor" of the airport, but with the exercise of police power. While the Hollywood-Burbank Airport may be the only major airport which is privately owned, many airports are owned by one municipality yet physically located in another. For example, the principal airport serving Cincinnati is located in Kentucky. Thus, authority that a municipality may have as a landlord is not necessarily congruent with its police power. We do not consider here what limits, if any, apply to a municipality as a proprietor.

    [ Footnote 15 ] 118 Cong. Rec. 35868.

    [ Footnote 16 ] Id., at 35886.

    [ Footnote 17 ] Id., at 37075.

    [ Footnote 18 ] Id., at 37083.

    [ Footnote 19 ] Id., at 37317.

    [ Footnote 20 ] 8 Weekly Comp. Pres. Docs. 1582, 1583 (Oct. 28, 1972).

    [ Footnote 21 ] The Administrator has adopted regulations prescribing noise standards which must be met as a condition to type certification for all new subsonic turbojet-powered aircraft. 14 CFR pt. 36. On January 30, 1973, FAA gave advance notice of proposed rulemaking for the control of fleet noise levels (FNL) of airplanes operating in interstate commerce. 38 Fed. Reg. 2769. (The regulations would not pertain to carriers also operating in foreign commerce). The proposed rules are designed to limit FNL prior to July 1, 1978, when the covered aircraft become subject to the requirements of 14 CFR pt. 36.

    The FNL would be determined as a function of the takeoff and approach noise levels of each airplane in the fleet and the number of takeoffs and landings of the fleet. Until July 1, 1976, the cumulative noise level of any fleet subject to regulation could not exceed the FNL during the previous 90-day base period. In 1976 each fleet would be required to reduce its FNL by 50% of the difference between the original base-period level and the level ultimately required by 14 CFR pt. 36.

    [ Footnote 22 ] In order to insure efficient and safe use of the navigable airspace, FAA uses centralized "flow control," regulating the number of aircraft that will be accepted in a given area and restricting altitudes and routes that may be flown. Flow control has resulted in the Los Angeles Air Route Traffic Control Center holding aircraft on the ground at the Hollywood-Burbank Airport.

    Prior to April 1970, 21 regional Air Route Traffic Control Centers exercised independent control over traffic flow in their areas. In April 1970 FAA established a Central Flow Facility to coordinate flow control throughout the Air Traffic Control system. This change was necessitated because no regional center "had enough information to make a judgment based on the overall condition of the ATC system. . . ." Fourth Annual Report of the Secretary of Transportation for Fiscal Year 1970.

    MR. JUSTICE REHNQUIST, with whom MR. JUSTICE STEWART, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL join, dissenting.

    The Court concludes that congressional legislation dealing with aircraft noise has so "pervaded" that field that Congress has impliedly pre-empted it, and therefore the ordinance of the city of Burbank here challenged is [411 U.S. 624, 641]   invalid under the Supremacy Clause of the Constitution. The Court says that the 1972 "Act reaffirms and reinforces the conclusion that FAA, now in conjunction with EPA, has full control over aircraft noise, pre-empting state and local control." Ante, at 633. Yet the House and Senate committee reports explicitly state that the 1972 Act to which the Court refers was not intended to alter the balance between state and federal regulation which had been struck by earlier congressional legislation in this area. The House Report, H. R. Rep. No. 92-842, in discussing the general pre-emptive effect of the entire bill, stated:

    The report went on to state specifically:

    The report of the Senate Public Works Committee, S. Rep. No. 92-1160, expressed the identical intent with respect to pre-emption:

    In the light of these specific congressional disclaimers of pre-emption in the 1972 Act, reference must necessarily be had to earlier congressional legislation on the subject. 1 It was on the basis of these earlier enactments that the Court of Appeals concluded that Congress had pre-empted the field from state or local regulation of the type that the city of Burbank enacted.

    The Burbank ordinance prohibited jet takeoffs from the Hollywood-Burbank Airport during the late evening and early morning hours. Its purpose was to afford local residents at least partial relief, during normal sleeping hours, from the noise associated with jet airplanes. The ordinance in no way dealt with flights over the city, cf. American Airlines v. Hempstead, 272 F. Supp. 226 (EDNY 1967), aff'd, 398 F.2d 369 (CA2 1968), cert. denied, 393 U.S. 1017 (1969), nor did it categorically prohibit all jet takeoffs during those hours.

    Appellees do not contend that the noise produced by jet engines could not reasonably be deemed to affect [411 U.S. 624, 643]   adversely the health and welfare of persons constantly exposed to it; control of noise, sufficiently loud to be classified as a public nuisance at common law, would be a type of regulation well within the traditional scope of the police power possessed by States and local governing bodies. Because noise regulation has traditionally been an area of local, not national, concern, in determining whether congressional legislation has, by implication, foreclosed remedial local enactments "we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). This assumption derives from our basic constitutional division of legislative competence between the States and Congress; from "due regard for the presuppositions of our embracing federal system, including the principle of diffusion of power not as a matter of doctrinaire localism but as a promoter of democracy . . . ." San Diego Building Trades Council v. Garmon, 359 U.S. 236, 243 (1959) (emphasis added). Unless the requisite pre-emptive intent is abundantly clear, we should hesitate to invalidate state and local legislation for the added reason that "the state is powerless to remove the ill effects of our decision, while the national government, which has the ultimate power, remains free to remove the burden." Penn Dairies, Inc. v. Milk Control Comm'n, 318 U.S. 261, 275 (1943).

    Since Congress' intent in enacting the 1972 Act was clearly to retain the status quo between the federal regulation and local regulation, a holding of implied pre-emption of the field depends upon whether two earlier congressional enactments, the Federal Aviation Act of 1958, 72 Stat. 731, 49 U.S.C. 1301 et seq., and the 1968 noise abatement amendment to that Act, [411 U.S. 624, 644]   49 U.S.C. 1431, manifested the clear intent to preclude local regulations, that our prior decisions require.

    The 1958 Act was intended to consolidate in one agency in the Executive Branch the control over aviation that had previously been diffused within that branch. The paramount substantive concerns of Congress were to regulate federally all aspects of air safety, see, e. g., 49 U.S.C. 1422 and, once aircraft were in "flight," airspace management, see, e. g., 49 U.S.C. 1348 (a). See S. Rep. No. 1811, 85th Cong., 2d Sess., 5-6, 13-15. While the Act might be broad enough to permit the Administrator to promulgate takeoff and landing rules to avoid excessive noise at certain hours of the day, see 49 U.S.C. 1348 (c), Congress was not concerned with the problem of noise created by aircraft and did not intend to pre-empt its regulation. Furthermore, while Congress clearly intended to pre-empt the States from regulating aircraft in flight, the author of the bill, Senator Monroney, specifically stated that FAA would not have control "over the ground space" of airports. 2  

    The development and increasing use of civilian jet aircraft resulted in congressional concern over the noise associated with those aircraft. Hearings were held over a period of several years, resulting in a report but no legislation. The report of the House Committee on Interstate and Foreign Commerce, H. R. Rep. No. 36, 88th Cong., 1st Sess., shows clearly that the 1958 Act was thought by at least some in Congress neither to pre-empt local legislative action to alleviate the growing noise problem, nor to prohibit local curfews:

    Several years after the conclusion of these hearings, Congress enacted the 1968 noise abatement amendment, 82 Stat. 395, which added 611 to the 1958 Act, 49 U.S.C. 1431, and which was the first congressional legislation dealing with the problem of aircraft noise. On its face, 3 611 as added by the 1968 amendment neither pre-empted the general field of regulation of [411 U.S. 624, 646]   aircraft noise nor dealt specifically with the more limited question of curfews. The House Committee on Interstate and Foreign Commerce, after reciting the serious proportions of the problem, outlined the type of federal regulation that the Act sought to impose:

    Far from indicating any total pre-emptive intent, the House Committee observed:

    The Senate Commerce Committee's view of the House bill followed a similar vein:

    With specific emphasis on pre-emption, the Senate Committee observed:

    In terms of pre-emption analysis, the most reasonable reading of 611 appears to be that it was enacted to enable the Federal Government to deal with the noise problem created by jet aircraft through study and regulation of the "source" of the problem - the mechanical and structural aspects of jet and turbine aircraft design. The authority to "prescribe and amend such rules and regulations as he may find necessary to provide for the control and abatement of aircraft noise and sonic boom," 49 U.S.C. 1431 (a), while a broad grant of authority to the Administrator, cannot fairly be read as prohibiting the States from enacting every type of measure, which [411 U.S. 624, 651]   might have the effect of reducing aircraft noise, in the absence of a regulation to that effect under this section. The statute established exclusive federal control of the technological methods for reducing the output of noise by jet aircraft, but that is a far cry from saying that it prohibited any local regulation of the times at which the local airport might be available for the use of jet aircraft.

    The Court of Appeals found critical to its decision the distinction between the local government as an airport proprietor and the local government as a regulatory agency, which was reflected in the views of the Secretary of Transportation outlined in the Senate Report on the 1968 Amendment. Under its reasoning, a local government unit that owned and operated an airport would not be pre-empted by 611 from totally, or, as here, partially, excluding noisy aircraft from using its facilities, but a municipality having territorial jurisdiction over the airport would be pre-empted from enacting an ordinance having a similar effect. If the statute actually enacted drew this distinction, I would of course respect it. But since we are dealing with "legislative history," rather than the words actually written by Congress into law, I do not believe it is of the controlling significance attributed to it by the court below.

    The pre-emption question to which the Secretary's letter was addressed related to "the field of noise regulation insofar as it involves controlling the flight of aircraft" (emphasis added), and thus included types of regulation quite different from that enacted by the city of Burbank that would be clearly precluded. See American Airlines v. Hempstead, supra. But more important is the highly practical consideration that the Hollywood-Burbank Airport is probably the only nonfederal airport in the country used by federally certified air carriers that is not owned and operated by a state or local [411 U.S. 624, 652]   government. 4 There is no indication that this fact was brought to the attention of the Senate Committee, or that the Secretary of Transportation was aware of it in framing his letter. It simply strains credulity to believe that the Secretary, the Senate Committee, or Congress intended that all airports except the Hollywood-Burbank Airport could enact curfews.

    Considering the language Congress enacted into law, the available legislative history, and the light shed by these on the congressional purpose, Congress did not intend either by the 1958 Act or the 1968 Amendment to oust local governments from the enactment of regulations such as that of the city of Burbank. The 1972 Act quite clearly intended to maintain the status quo between federal and local authorities. The legislative history of the 1972 Act, quite apart from its concern with avoiding additional pre-emption, discloses a primary focus on the alteration of procedures within the Federal Government for dealing with problems of aircraft noise already entrusted by Congress to federal competence. The 1972 Act set up procedures by which the Administrator of EPA would have a role to play in the formulation and review of standards promulgated by FAA dealing with noise emissions of jet aircraft. But because these agencies have exclusive authority to reduce noise by promulgating regulations and implementing standards directed at one or several of the causes of the level of noise, local governmental bodies are not thereby foreclosed from dealing with the noise problem by every other conceivable method. [411 U.S. 624, 653]  

    A local governing body that owns and operates an airport is certainly not, by the Court's opinion, prohibited from permanently closing down its facilities. A local governing body could likewise use its traditional police power to prevent the establishment of a new airport or the expansion of an existing one within its territorial jurisdiction by declining to grant the necessary zoning for such a facility. Even though the local government's decision in each case were motivated entirely because of the noise associated with airports, I do not read the Court's opinion as indicating that such action would be prohibited by the Supremacy Clause merely because the Federal Government has undertaken the responsibility for some aspects of aircraft noise control. Yet if this may be done, the Court's opinion surely does not satisfactorily explain why a local governing body may not enact a far less "intrusive" ordinance such as that of the city of Burbank.

    The history of congressional action in this field demonstrates, I believe, an affirmative congressional intent to allow local regulation. But even if it did not go that far, that history surely does not reflect "the clear and manifest purpose of Congress" to prohibit the exercise of "the historic police powers of the States" which our decisions require before a conclusion of implied pre-emption is reached. Clearly Congress could pre-empt the field to local regulation if it chose, and very likely the authority conferred on the Administrator of FAA by 49 U.S.C. 1431 is sufficient to authorize him to promulgate regulations effectively pre-empting local action. But neither Congress nor the Administrator has chosen to go that route. Until one of them does, the ordinance of the city of Burbank is a valid exercise of its police power.

    The District Court found that the Burbank ordinance would impose an undue burden on interstate commerce, [411 U.S. 624, 654]   and held it invalid under the Commerce Clause for that reason. Neither the Court of Appeals nor this Court's opinion, in view of their determination as to pre-emption, reached that question. The District Court's conclusion appears to be based, at least in part, on a consideration of the effect on interstate commerce that would result if all municipal airports in the country enacted ordinances such as that of Burbank. Since the proper determination of the question turns on an evaluation of the facts of each case, see, e. g., Bibb v. Navajo Freight Lines, 359 U.S. 520 (1959), and not on a predicted proliferation of possibilities, the District Court's conclusion is of doubtful validity. The Burbank ordinance did not affect emergency flights, and had the total effect of prohibiting one scheduled commercial flight each week and several additional private flights by corporate executives; such a result can hardly be held to be an unreasonable burden on commerce. Since the Court expresses no opinion on the question, however, I refrain from any further analysis of it. 5  

    [ Footnote 1 ] Statements or comments of individual Senators or Representatives on the floor of either House are not to be given great, let alone controlling, weight in ascertaining the intent of Congress as a whole, see, e. g., Duplex Printing Press Co. v. Deering, 254 U.S. 443, 474 (1921); McCaughn v. Hershey Chocolate Co., 283 U.S. 488, 494 , (1931); cf. Wright v. Vinton Branch of Mountain Trust Bank, 300 U.S. 440, 464 (1937). This guidance is particularly appropriate in this case, as the statements of two individual Congressmen quoted in the Court's opinion are at odds with the views expressed in the committee reports.

    [ Footnote 2 ] Hearings before the Subcommittee on Aviation of the Senate Committee on Interstate and Foreign Commerce (hereafter Commerce Committee), on S. 3880, Federal Aviation Agency Act, 85th Cong., 2d Sess., 279.

    [ Footnote 3 ] "(a) Consultations; standards; rules and regulations.

    [ Footnote 4 ] The record is not exactly clear on this point, but it does appear to be the case. Although there are several airports owned by municipalities or other governmental units that are located outside of the boundaries of the units, there does not appear to be any other privately owned airport, at which certified air carriers operate, in the country.

    [ Footnote 5 ] Although cited by the Court, this situation is clearly not a Cooley situation, in which the control of aircraft noise "admit[s] only of one uniform system, or plan of regulation, [which] may justly be said to be of such a nature as to require exclusive legislation by Congress." Cooley v. Board of Wardens, 12 How. 299, 319 (1852). The court below also held, but by a divided vote, that the Burbank ordinance was invalid because it was in conflict with a clearly articulated federal policy, to wit, a non-mandatory runway preference order of the FAA tower chief at Burbank which requested pilots to use a particular runway at night. The Court does not decide this case on that ground; I see no occasion to express in detail my views on the conflict issue, except to note my doubt as to the correctness of the disposition of that question. [411 U.S. 624, 655]  

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