City of Burbank v. Lockheed Air Terminal Cite as: 411 U.S. 624
U.S. SUPREME COURT
CITY OF BURBANK et al. v. LOCKHEED AIR TERMINAL, INC., et al.
Appeal from the U.S. Court of Appeals for the Ninth Circuit
Argued February 20, 1973
Decided May 14, 1973
COURT'S SYNOPSIS: 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.
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. Shavelson, Assistant Attorney General, and Larry C. King, Deputy Attorney General. [FN *]
[FN*] 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:
"Now the power to regulate commerce, embraces a vast field, containing not only many, but exceedingly various subjects, quite unlike in their nature; some imperatively demanding a single uniform rule, operating equally on the commerce of the United States in every port; and some, like the subject now in question, as imperatively demanding that diversity, which alone can meet the local necessities of navigation.
". . . Whatever subjects of this power are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress." Id., at 319.
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 to take off from that airport during such periods. [FN1] 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.
[FN 1] Burbank Municipal Code 20-32.1. The ordinance provides an exception for "emergency" flights approved by the City Police Department.
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. [FN2] 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.
[FN 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.
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 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 . . . ." [FN3]
[FN 3] Section 307 provides in relevant part as follows:
"(a) The Administrator is authorized and directed to develop plans for and formulate policy with respect to the use of the navigable airspace; and assign by rule, regulation, or order the use of the navigable airspace under such terms, conditions, and limitations as he may deem necessary in order to
insure the safety of aircraft and the efficient utilization of such airspace. . . .
. . . .
"(c) The Administrator is further authorized and directed to prescribe air traffic rules and regulations governing the flight of aircraft, for the
navigation, protection, and identification of aircraft, for the protection of persons and property on the ground, and for the efficient utilization of the navigable airspace, including rules as to safe altitudes of flight and rules for the prevention of collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne
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 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 aircraft and its noise are indivisible; the noise of the aircraft extends outward from it with the same inseparability as its wings and tail assembly; to exclude the aircraft noise from the Town is to exclude the aircraft; to set a ground level decibel limit for the aircraft is directly to exclude it from the lower air that it cannot use without exceeding the
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, [FN4] i.e., by July 1973. The 1972 Act, by amending 611 of the Federal Aviation Act, [FN5] 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." [FN6] Section 611 (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. [FN7] 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.
[FN 4] Section 7 (a) provides:
"The Administrator, after consultation with appropriate Federal, State, and local agencies and interested persons, shall conduct a study of the (1) adequacy of Federal Aviation Administration flight and operational noise controls; (2) adequacy of noise emission standards on new and existing aircraft, together with recommendations on the retrofitting and phaseout of existing aircraft; (3) implications of
identifying and achieving levels of cumulative noise exposure around airports; and (4) additional measures available to airport operators and local governments to control aircraft noise. He shall report on such study to the Committee on Interstate and Foreign Commerce of the House of Representatives and the Committees on Commerce and Public Works of the
Senate within nine months after the date of the enactment of this Act."
[FN 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).
[FN 6] Section 611 (b) (1), as amended, reads:
"In order to afford present and future relief and protection to the public health and welfare from aircraft noise and sonic boom, the FAA, after consultation with the Secretary of transportation and with EPA, shall prescribe and amend standards for the measurement of aircraft noise and sonic boom and
shall prescribe and amend such regulations as the FAA may find necessary to 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. No exemption with respect to any standard or regulation under this section may be granted under any provision of this Act
unless the FAA shall have consulted with EPA before such exemption is granted, except that if the FAA determines that safety in air commerce or air transportation requires that such an exemption be granted before EPA can be consulted, the FAA shall consult with EPA as soon as practicable after the exemption is granted."
[FN 7] Subsection (b) (2) provides:
"The FAA shall not issue an original type certificate under section 603 (a) of this Act for any aircraft for which substantial noise abatement can be achieved by prescribing standards and regulations in accordance with this section, unless he shall have prescribed standards and regulations in accordance with this
section which apply to such aircraft and which protect the public from aircraft noise and sonic boom, consistent with the considerations listed in subsection (d)."
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 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, [FN8] 83 Stat. 853, 42 U.S.C. 4332 (2) (c), with respect to FAA's action. FAA's action, if adverse to EPA's proposal, shall be published in the Federal Register.
[FN 8] Section 102 reads in part as follows:
"The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall -- . . . (C) include in
every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on -- (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii)
alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the
responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental
standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes."
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 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."