City of Burbank v. Lockheed Air Terminal (Part 2)

City of Burbank v. Lockheed Air Terminal (continued)

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 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: [FN9] "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: [FN10] "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."

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

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

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, 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 [FN11] 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." [FN12] The Secretary requested leave to submit a written opinion, and in a letter dated June 22, 1968, he stated:

"The courts have held that the Federal Government presently preempts the field of noise regulation insofar as it involves controlling the flight of aircraft. . . . H. R. 3400 would merely expand the Federal Government's role in a field already pre-empted. It would not change this preemption. State and local governments will remain unable to use their police powers to control aircraft noise by regulating the flight of aircraft."

[FN 11] See n. 5, supra.

[FN 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.

According to the Senate Report, [FN13] 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. [FN14]

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

[FN 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 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.

The Senate version of the 1972 Act as it passed the Senate contained an express pre-emption section. [FN15] But the Senate version never was presented to the House. Instead, the Senate passed, with amendments, the House version; [FN16] the House, also with amendments, then concurred in the Senate amendments. [FN17] 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: [FN18]

[FN 15] 118 Cong. Rec. 35868.

[FN 16] Id., at 35886.

[FN 17] Id., at 37075.

[FN 18] Id., at 37083.

When the House approved the blended provisions of the bill, Senator Tunney moved that the Senate concur. He made clear [FN19] that the regulations to be considered by EPA for recommendation to FAA would include:

"proposed means of reducing noise in airport environments through the application of emission controls on aircraft, the regulation of flight patterns and aircraft and airport operations, and modifications in the number, frequency, or scheduling of flights [as well as] . . . the imposition of curfews on noisy airports, the imposition of flight path alterations in areas where noise was a problem, the imposition of noise emission standards on new and existing aircraft -- with the expectation of a retrofit schedule to abate noise emissions from existing aircraft -- the imposition of controls to increase the load factor on commercial flights, or other reductions in the joint use of airports, and such other procedures as may be determined useful and necessary to protect public health and welfare." (Emphasis added.)

[FN 19] Id., at 37317.

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 interstate commerce and can be effectively regulated only at the federal level." [FN20]

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

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. [FN21] 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 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.

[FN 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.

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. [FN22] 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:

[FN 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.

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.

Continued in Part Three