Appendix — Suburban O'Hare Commission v. Dole
Supreme Court brief1986
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Text
86- 1
No. Supremes Court, U.S.
tts D
ie JUL 2 1988
Supreme Court of the Anite went IR.
OctTosBer TERM, 1985
SUBURBAN O’HARE COMMISSION; THE VILLAGE OF
ADDISON; THE VILLAGE OF BENSENVILLE; THE CiTY
OF DES PLAINES; THE VILLAGE OF ELK GROVE VIL-
LAGE; THE CITY OF ELMHURST; THE VILLAGE OF
FRANKLIN PARK; THE VILLAGE OF HARWOOD
HEIGHTS; THE VILLAGE OF ITASCA; THE VILLAGE OF
NILES; THE VILLAGE OF NORRIDGE; THE CITY OF
PARK RIDGE; THE VILLAGE OF SCHILLER PARK; THE
CITY OF WOOD DALE; and LAWRENCE C. BIENEMAN,
Petitioners,
v.
ELIZABETH HANFORD DOLE, Secretary of the Department
of Transportation, UNITED STATES DEPARTMENT OF
TRANSPORTATION; RUSSELL A. OLSON, Regional Rep-
resentative of the Department of Transportation, Region V;
DONALD ENGEN, Administrator of the Federal Aviation
Administration; FEDERAL AVIATION ADMINISTRATION;
PAUL BOHR, Director, Great Lakes Region, Federal Aviation
Administration; JOHN GUIDOTTI, Supervisor, Illinois Sec-
tion, Chicago Airports District Office, Federal Aviation Admin-
istration; THE CITY OF CHICAGO, a municipal corporation;
and JEROME R. BUTLER, Commissioner of the Department
of Aviation of the City of Chicago,
Respondents.
APPENDIX TO PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE SEVENTH CIRCUIT
Of Counsel:
JOHN L. ZIMMERMANN
1190 South Elmhurst Road
Suite 200
Mount Prospect, IL 60056
(312) 439-2500
JOSEPH V. KARAGANIS
A Bruce WHITE
Kk .THLEEN M. DONAHUE
ELLEN Lots Z1sook
BELL, Bovp & LLoyp
Three First National Plaza
Suite 3200
Chicago, IL 60602
(312) 372-1121
Attorneys for Petitioners
Pandick Midwest, Inc., Chicago © 733-6000
ee os
i
TABLE OF CONTENTS
Order, dated April 14, 1986, summarily affirming Sub-
urban O’Hare Commission, et al. v. Dole, et al., 603
F.Supp. 1013 (N.D. Ill. February 28, 1985) ( No. 85-
Order, dated April 3, 1986, denying rehearing en banc
in Suburban O’Hare Commission, et al. v. Dole, et al.,
—— > ( No. 85-1073, March 13, 1986) ........
Suburban O’Hare Commission, et al. v. Dole, et al.,
daa ae (No. 85-1073, March 13, 1986) ........
Suburban O’Hare Commission, et al. v. Dole, et al., 603
a, DES CIEE. Ges COD eisstectisctctitcccasiccnsiiccavevconese
Letter, dated November 14, 1984, from John Guidotti,
Supervisor, Illinois Section, Chicago Airports District
Office, Federal Aviation Administration to Thomas
Kapsalis, Commissioner, Department of Aviation,
City of Chicago, approving March 1984 Airport
Layout Plan for Chicago O’Hare International Air-
SNE case hiccaallaisctinssiedaddiagtibdatachiddauhinchataasiebumianbanepagtemeominiindaiea
Record of Decision, Airport Layout Plan, Chicago
O’Hare International Airport, dated November 14,
Ps iacaindas Tatiana tala piccinsccethcgpenisncicaavenanianekentddipaatnibiopnens
Chicago O’Hare International Airport, Airport Layout
PAGE
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A-3
A-4
A-31
A-69
A-72
Pian Dated March 1984, Airspace Review Comments A-103
United States of America, Department of Trans-
portation. Federal Aviation Administration, Great
Lakes Region, Des Plaines, Illinois, Jn the matter of
the petition of Chicago O’Hare-International Airport,
Chicago, Illinois for an exemption from Section
139.81 (a) of the Federal Aviation Regulations,
Regulatory Docket No. 84-AGL-139.81E-4508,
I FIN BFR BW cdeiccccrdeicinatsccsdsidecndadutiadbiidininsiin
ii
PAGE
Consent Decree, entered October 14, 1982, in State Of
Illinois ex rel. Scott v. Butterfield, No. 74 2410,
United States District Court for the Northern District
OE TITS rrenasecesinscensionivesninenernieigiieiinnaamaelaiS A-109
Administrative Procedure Act, 5 U.S.C. Section 554....... A-118
Administrative Procedure Act, 5 U.S.C. Section 556....... A-120
Administrative Procedure Act, 5 U.S.C. Section 557....... A-122
Administrative Procedure Act, 5 U.S.C. Section 706 ....... A-126
Administrative Orders Review Act, 28 U.S.C. Section
DOAF .ciiscncsicsiéinsnsintecstabcansmpbsddommetndnamandanaamanan A-127
National Environmental Policy Act of 1969, 42 U.S.C.
Sects SF29-GIGN eveccceccscccscsentiliciiniesinanaacmmaiaa A-128
Federal Aviation Act, 49 U.S.C. Section 1486 ................. A-145
Airport and Airway Improvement Act of 1982, 49
OU B.C. Bectiet BIO vcs sievsnisnnissteosencseitssiaindanaaae A-147
Airport and Airway Improvement Act of 1982, 49
FSC. GO TINO iccctinicinesictishivvinecteabcescccimupeaanpaanan A-152
Affidavit of Robert H. Haveman........................cccccsccscoeees A-158
AGiidavia of Josaple 1... COs .eciscccsasnssoccssersccicsnsessnsssnnesion A-198
Affidavit of Richard L. De Neufiville .....................ceeeeeeees A-238
Affidavit of Barry Bateman ...................cccsscccscccssesescees seeeee A-249
AM Gavia Of Wien C. BGIEYy ccsicevevecntvvnncssincnmncsnesesieaieanes A-252
AGRdavin of Bamied Me. FADO eccccsnceicscnscsnssescsstncnascsasesmecs A-261
ASidavin of Dewiglet ©. Dai isnsasscccsencerenscavessocsserressonsonpes A-266
Affidavit of Frederic C. Hambur...................sccsseeceeeeeees A-269
Affidavit of Bertram W. Carnow....000...........-cccessseeseseseeeeees A-287
ATRdvit OF MOT C., TRG occ cncsccccceciessncsersrnsttniventadannea A-294
Supplemental Affidavit of William C. Sperry.................. A-297
Atidavit of Wihartins 5. TOE iscsicssvccvetenccnsssatensosesnnnnccmmana A-302
Supplemental Affidavit of Joseph L. Carroll ..................-. A-304
ee
A-l
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
April 14, 1986.
Before
Hon. WALTER J. CUMMINGS, Chief Judge
Hon. LUTHER M. SWYGERT, Senior Circuit Judge
Hon. JESSE E. ESCHBACH, Senior Circuit Judge
No. 85-1423
SUBURBAN O’HARE COMMIS. |
SION et ai.
oh Appeal from the United States
Plaintiffs-Appellants, District Court for the North-
ern District of IMinois, East-
y. 3 ern Division.
ELIZABETH HANFORD DOLE, No. 84 C 10387
Secretary of the Department of Ilana D. Rovner. Judge
Transportation, et al.,
Defendants-Appellees. ,
This matter comes before the court for its consideration of
the following documents:
1. “MEMORANDUM FOR FEDERAL RESPOND-
ENTS” filed herein on April 2, 1986.
2. “SUGGESTIONS OF APPELLEE CITY OF
CHICAGO REGARDING DISPOSITION OF DOCKET
NO. 85-1423” filed herein on April 3, 1986.
3. “MEMORANDUM OF PLAINTIFFS-APPEL-
ANTS” filed herein on April 3, 1986.
A-2
Plaintiffs-Appellants originally sought to challenge the
FAA’s decision to approve the O’Hare expansion in the district
court. Judge Rovner dismissed the case for lack of jurisdiction
finding that jurisdiction rested exclusively with the court of
appeals. Following Judge Rovner’s decision plaintiffs-appel-
lants filed both an appeal from the district court’s dismissal ( 85-
1423) and an original petition for review (85-1073) in this
court.
We held the appeal from Judge Rovner’s order in
abeyance pending our decision on the petition for review.
On March 13, 1986 we issued our opinion in 85-1073
finding that this court had exclusive jurisdiction over the case.
On March 20, 1986 we invited the parties to the instant appeal
to suggest the proper disposition of appeal 85-1423 in light of
our decision in 85-1073.
Appellees suggested that we summarily affirm the district
court. Appellants did not contest this but suggested that we
wait until the petition for rehearing in 85-1073 had been
disposed of. On April 3, 1986, we denied the petition for
rehearing in 85-1073. Accordingly,
IT IS ORDERED that the February 28, 1985 order of the
district court, which is the subject of appeal 85-1423 is hereby
summarily affirmed.
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
April 3, 1986.
Before
Hon. WALTER J. CUMMINGS, Chief Judge
Hon. LUTHER M. SWYGERT, Senier Circuit Judge
Hon. JESSE E. ESCHBACH, Senior Circuit Judge
No. 85-1073
~*~
SUBURBAN O’HARE
COMMISSION, et al.,
Petitioners, =
Petition for Review of Orders
of the Secretary of the
Department of _ Trans-
portation and the Adminis-
ELIZABETH HANFORD DOLE, trator of the Federal Avia-
tion Administration, and to
Secretary of the Department of Trans- | Enforce Consent Decree.
portation, et al.,
y.
Respondents.
J
ORDER
On consideration of the petition and suggestion for a
rehearing en banc of the above matter, no active member of the
court requested any action on the suggestion for an en banc
rehearing, and all members of the original panel have voted to
deny said petition,
IT IS ORDERED that said petition for rehearing be and
the same is hereby denied.
A-4
iu tae
United States Court of Appeals
Bor the Seventh Cirrutt
No. 85-1073
SUBURBAN Q’HARE COMMISSION, et al.,
Petitioners,
v.
ELIZABETH HANFORD DOLE, Secretary of the
Department of Transportation, et ai.,
Respondents.
Petition for Review of a Decision of the
Federal Aviation Administration and
Department of Transportation.
ARGUED SEPTEMBER 27, 1985—DECIDED Marcu 13, 1986
Before CuMMINGS, Chief Judge, and SwWYGERT and
ESCHBACH, Senior Circuit Judges.
SwyGERT, Senior Circuit Judge. This case concerns
the proposed expansion of Chicago’s O’Hare International
Airport. Petitioners are a group of municipalities situated
near the O’Hare Airport and organized into the Suburban
O’Hare Commission (“‘Suburban”).! Respondents are the
1 The communities are the Village of Addison, the Village of Ben-
senville, the City of Des Plaines, the Village of Elk Grove Village,
the City of Elmhurst, the Village of Franklin Park, the Village
of Harwood Heights, the Village of Itasca, the Village of Niles,
(Footnote continued on following page)
Srna Weer hia
A-5
No. 85-1073
Department of Transportation, the Federal Aviation Ad-
ministration (“FAA’’), the City of Chicago, and various
public officials including the Secretary of the Department
of Transportation.
or Ng gpomsmeen ny. Poet to ws aside the deci-
sion of the approving Chicago’s plan to expand the
capacity of O’Hare and to enjoin all further construction
at the location. For the reasons we now set forth the peti-
tion is denied.
I
Located on a 6,925 acre site in Cook and DuPage counties
seventeen miles northwest of downtown Chicago, O’Hare
is one of three airports owned and operated by the City
of Chicago.?
During World War II Douglas Aircraft manufactured
C-54 transport planes for the United States Air Corps
on the site of what is now O’Hare. The City purchased
the Douglas facility for one dollar in 1945, and built the
Orchard Place Airport on the site in 1946. In 1949 the
facility was renamed for Edward “Butch” O’Hare, a Navy
fighter ace and Congressional Medal of Honor recipient.
From 1926 to 1959 Midway Airport was the major air-
port of the Chicago area and the busiest airport in the
world, but chronic congestion at Midway led to the City’s
decision to make O’Hare the area’s major airfield. In 1959
the City began a massive expansion of O’Hare. By July
1962 most major air carriers had shifted operations to
O’Hare. O’Hare was designed to accommodate twenty mil-
1 continued
Schiller Park, and the City of Wood Dale. The combined popula-
tion of these communities is estimated at 400,000. Lawrence C.
Bieneman, a resident of the Village of Bensenville, is also a peti-
tioner in this case.
2 The other airports are Meigs Field and Midway Airport.
A-6
No. 85-1073
lion passengers annually, but currently approximately for-
ty million passengers a year pass through the facility. The
airport employs 35,000 people and is one of Chicago’s
largest employers.
Historically, aviation has been a closely regulated indus-
try. In 1938, when commercial aviation was still in its in-
fancy, Congress enacted the Civil Aeronautics Act. In
1958, in response to rapid and dramatic changes in the
nature of aviation, Congress replaced the Civil Aeronau-
tics Act with the Federal Aviation Act, 49 U.S.C. $§ 1301
et seg. (Chapter 20 of Title 49).
In 1946, to encourage the development of airports de-
signed to accommodate interstate and international flights,
Congress enacted the Federal Airport Act. This Act was
superseded by the Airport and Airway Development Act
of 1970. This legislation was in turn replaced by the Air-
rt and Airway Improvement Act of 1982 (“AAIA”), 49
S.C. §§ 2201 et seg. (Chapter 31 of Title 49). Both the
Federal Aviation Act and the Airport and Airway Im-
provement Act are administered by the FAA.
The Airport and Airway Development Act of 1970 made
federal funds available to certain so-called “hub” cities to
engage in a long-range planning process designed to pro-
duce an appropriate master plan for regional aviation de-
velopment. In 1975, with funding provided by the FAA,
Chicago hired Landrum & Brown, an aviation consulting
firm, to prepare a Master Plan Study for O’Hare.* The
study represented the first attempt to formulate a system-
atic plan of growth for O’Hare.
Landrum & Brown’s Master Plan Study consists of nine-
teen volumes comprising thousands of pages and examines
3 The City retained O’Hare Associates as supervising consultants
for the project. O’Hare Associates is a joint venture of partners
from Murphy-Jahn (architecture), Envirodyne (engineering), and
ao Associates (construction). L&B was the original planner of
"Hare.
No. 85-1073
various factors relevant to airport development.‘ The con-
sultants originally forecast a maximum unconstrained de-
mand of 1.4 million flight operations in the Chicago area
by 1995. Without significant expansion, Chicago’s Midway
Airport was projected to receive .3 million of those flights.
Meigs Field was to receive .1 million flights. The remain-
ing one million flignts would somehow have to be accom-
modated at O’Hare. Landrum & Brown initially concluded
that the projected demand could only be met by the con-
struction of two new runways. This result was unaccept-
able to significant segments of the suburban population
living near O’Hare. Conscious of the community ition
to the addition of new runways the City decided to limit
the growth of O’Hare, in theory eliminating the need for
the new runways until at least 1995. At the same time
the City committed itself to accommodate at least a sig-
nificant portion of the projected growth of the region’s
commercial aviation demand.
While the Master Plan Study was still in the prepara-
tion stage opponents of continued growth at O’Hare took
their — to the courts. In 1974 then-State Attorney
General William Scott sued the FAA in federal district
court alleging that the agency had violated the National
Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321
et seq., by adopting a policy of unlimited growth at O’Hare.
State of Illinois ex rel. Scott v. Butterfield, No. 74 C 2440
(N.D. Ill. 1974). Suburban was permitted to intervene in
the litigation. The Butterfield litigation ended on October
15, 1982, when the FAA, the City, and Suburban entered
into a consent decree governing future growth at O’Hare.
The consent decree provided in relevant part:
* Using funds provided by the FAA, Suburban retained the con-
sul ot lath Puke Aeoetinis aed Es, Gaeta & Mew
man, Inc. to furnish an independent review of the L&B MPS.
Suburban’s consultants gave favorable reviews to the L&B study.
“Methodologies used by L&B for [aviation] forecasts and noise
analysis are widely used and generally accepted by the airport
community and federal agencies.” Interim Report on Review of
O’Hare Airport Master » MPS Vol. XIX at B-2.
EE
No. 85-1073
{ 1a. All future development at O’Hare will comply
with all then j requirements of Federal and
and procesaing.
{ 1d. Chicago agrees that it Will request the FAA
to process an Environmental Impact Statement (“EIS”)
... With to any of the following projects (or
een in scale or purpose) at O’Hare: (i)
erminal 1 and related concourses and aprons; (ii) In-
ternational Terminal; (iii) general aviation terminal;
{ lg. The FAA has not made any determination
with to the matters described in P
No. 85-1073
Advisory Committee, composed of representatives from
both the community and government, as the appropriate
forum for consideration of the relationship between O’Hare
od. - rpms + sell ype pepamcndan cory Fal
provided for the establishment of a permanent Office
of Noise Abatement charged with investigating complaints
about airport noise and with evaluating the effectiveness
of noise abatement procedures.
The parties to the consent decree entered into a se
rate Intergovernmental Agreement which provided t t
the communities surrounding O’Hare ime “feasible
and reasonable steps to discourage the further develop-
ee Sie ol ce «il
City agreed that it would employ a + poe ee
wed l in rneasuring the impact on noise levels of O’
opera sctlees al Wak tb Vebdilin “atlee snip” goupered
: Representation on the Advisory Committee was distributed as
DuPage Mayors and Conference (2)
DuPage County Board of Commissions (1)
Chicago Ausocation of Commerce and Industry (D
Air Association (1)
Illinois Planning )
Illinois Department of Commerce and Community Affairs (1)
Illinois Department of Transportation (1)
Chicago Department of Aviation (1)
Office of the Mayor, City of Chicago (1)
A-10
No. 85-1073
by the City would be based on a 65 Ldn Contour.® Chi-
cago represented that it would not seek a finding of no
significant environmental impact by the FAA.
a ae e ens br anaes of Otee
tin to review or
ie Nr pe ie se
sevdapanas Shade bas tack is liti-
ion the City ted a two-phase development plan.
I of the tw plan primarily involved the con-
struction of a fourth terminal and an associated Concourse
L. Phase II is a much more ambitious undertaking. Ac-
ing to the notice of intent published on November 26,
1982 in the Federal Register, the following projects are
contemplated:
Extension of Runways 27R, 32L
Construction of second taxiway bridge
Construction of new taxiways
Relocation of the inner/outer terminal area taxiway
New apron construction
Construction of snow removal facilities
Acquisition of the military site and demolition and
replacement of — USAF facilities
Construction of a new International Terminal and
Concourse
Expansion of existing terminal buildings
— of a new Terminal 1 and new concourses
Construction of a new general aviation facility
Construction of new cargo complex
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No. 85-1073
Expansion of the ing and refrigeration plant
Terminal area roadway rovements
Airport ground access ements
Senne ats bow Gee alkce helity
Parking facili systems
The official estimated cost of all the development proj-
i were held on the matter in December
i e t soon . Su
we. Fong or instance, submitted written comments on Jan-
uary 11, 1983, Rec. Vol. I, at 173. Typically, the written
ised questions about the impact on the en-
vironment of the proposed expansion plans.
II
Ray wind significant ecting > pea rl
jor actions signi y i ity o
human environment” must submit an reer hee Rec Im-
Statement (“EIS”). It is not contested that the City
pork. Pca tig tected tlyer sah ar -— llth
funding bringing the expansion plans for O’Hare with-
in NEPA’s ambit. An EIS must provide a “detailed state-
ment” on:
(1) the environmental impact of the proposed action,
(2) any adverse environmental effects which cannot
be avoided should the proposal be implemented,
(3) alternatives to the proposed action,
!
:
ee
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No. 85-1073
(4) the relationship between local short-term uses of
man’s environment and the maintenance and enhance-
ments of long-term productivity, and
(5) any irreversible and irretrievable commitments
of resources which would be involved in the
— should it be implemented. 42 U.S:C. § 4332
(2XC).
FAA Order 5050.4 states that an Airport EIS should
consider the following:
Purpose and Need for the Action
Alternative
Affected Environment
Environmental Consequences
Noise
Land use
Social impacts
Induced socio-economic impacts
Air quality
Water quality
DOT Section 4(f) lands
Historic sites
ely yr
art an itect applications
Endangered species of flora and fauna
Wetlands
Floodplains
Prime and unique farmlands
Energy
Light emissions
Solid waste
Construction Impacts
Adverse Impacts which Cannot be Avoided
The City determined that “Noise, Land use, Water qual-
ity, Air ‘oie, and Construction impacts” should receive
the greatest attention in the O’Hare EIS, Rec. Vol. I,
at 141. The EIS in this case was prepared in stages and
reflects the contributions of many individuals and organiza-
tions including the petitioners. may | preliminary draft of the
iiitaeneeeeeiememeeilamemasiiiadiel
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No. 85-1073
EIS, prepared by the City, was completed by February
1983; a formal draft of the EIS, was submitted in June
1983. The final EIS processed by the FAA using data fur-
nished by the City was completed in Ma ay 1984. Because
the environmental issues raised by the O'Hare expansion
plans had always been the most caeeoaialal element of
the Airport Layout Plan, FAA completion of the final EIS
cleared the way for approval of the Plan, which came on
November 14, 1984.® In — 1984 in response to com-
ments from the Environmen Protection Aces Agency the FAA
developed a program of air quality mitigation measures.
On December 4, 1984 Suburban filed suit in the United
States District Court for the Northern District of Illinois
—_ the FAA and the City at. that the approval
the Airport Layout Pian violated the Butterfield con-
sent decree, NEPA, the Airway and Ai Improvement
Act, and the Clean Air Act, 42 U.S.C. §§ 7401 et seq.
Suburban moved for a preliminary injunction to enjoin all
further construction at O’Hare. The district court dis-
missed the complaint finding that it lacked subject mat-
ter jurisdiction over the complaint. Suburban O’Hare
Commission v. Dole, No. 84 C 10387, Memorandum Opin-
ion and Order (N.D. Ill. Feb. 28, 1985). Prior to the dis-
trict court’s dismissal, Suburban, as a matter of protec-
tive pleading, filed the present petition for review in this
* A cost-benefit analysis is not — of an oe but one was
a repared in this case al it was not included in the final EIS.
sedsieh Suith semidiiens ative i imenenelion of
ro ty’s governing 3
NEPA, an it dad Oe bedhead b teseeil alah teeeallt Ani
C.F.R. § 1507.23. “The statement is sufficient if it gives .
sionmaker and other readers enough detail concerning all of these
costs and benefits to permit reasoned evaluation and decision.”
South Louisiana Environmental Council v. Sand, 629 F.2d 1005,
1013, n.7 (6th Cir. 1980); Sierra Club v. Sigler, 695 F.2d 957,
976-77, n.15 (6th Cir. 1983). A formal cost-benefit analysis need
be included in the EIS itself only if the relies on such anal-
yun in reaching the decision to which the EIS relates. 40 C.F-R.
a
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No. 85-1073
court on January 14, 1984. It is that petition for review
that is before us. Technically, the petition for review asks
us only to review the legality of the FAA’s approval of
the Airport Layout Plan. As we have indicated, ever,
the Plan incorporates by reference all relevant environ-
mental requirements. In effect, therefore, we are also asked
to rule upon the adequacy of the final EIS.
Ill
A threshold issue we must address before reaching the
merits of Suburban’s claim is whether jurisdiction properly
vests in this court, as respondents contend, or in the dis-
trict court, as petitioners urge. We have been assisted
in our consideration of this matter by the thoughtful opin-
ion of the district court dismissing Suburban’s complaint.
We point out, however, that the proceeding below is juris-
dictionally distinct from the present petition for review
in this court and that the district court’s decision is not
under review by this court.
The FAA has stated that its review of the Master Plan
Study and Airport Layout Plan was conducted under parts
77, 139, 152, and 157 of FAA regulations codified at 14
C.F.R. The FAA’s review pursuant to 14 C.F.R., parts
77, 139, and 157, was conducted pursuant to authority
vested in the FAA under Chapter 20 of Title 49. The
FAA’s review pursuant to part 152 of 14 C.F.R. was con-
ducted pursuant to authority of Chapter 31 of Title 49.
49 U.S.C. § 1486(a) provides that:
(a) Any order, affirmative or negative, issued by the
Board or Administrator under this chapter, except
any order in respect of any foreign air carrier su
ject to the approval of the President as provided in
section 1461 of this title, shall be subject to review
by the court of appeals of the United States or the
nited States Court of Appeals for the District of
Columbia upon petition, filed within sixty days after
the entry of such order, by od person disclosing a
substantial interest in such order. After the expira-
No. 85-1073
tion of said sixty days a petition may be filed only
by leave of court upon a showing of reasonable grounds
for failure to file the petition theretofore.
49 U.S.C. § 1486(d) declares that the courts of ap ——
shall have exciusive jurisdiction to affirm or set aside
order of the FAA issued pursuant to this section. Thus,
if the FAA order approving the ALP was, in fact, made
pursuant to Section 1486 it is clear that exclusive juris-
diction to review that order rests with this court. Gaunce
v. deVincentis, 708 F.2d 1290 (7th Cir. 1983); City of
Aurora v. Hunt, 749 F.2d 1457 (10th Cir. 1984); City of
Alexandria v. Helms, 728 F.2d 643 (4th Cir. 1984); State
of New York v. FAA, 712 F.2d 806 (2d Cir. 1983); City
of Rochester v. Bond, 603 F.2d 927 (D.C. Cir. 1979).
Suburban advances three arguments in support of its
cortention that the FAA’s order of November 14, 1984
is reviewable only in the district court. First, Suburban
contends that the FAA’s decision was actually made pur-
suant to Chapter 31 of Title 49. Second, Suburban asserts
that the district court had jurisdiction over its claim by
virtue of the Butterfield consent decree. Third, Suburban
argues that the FAA decision is not an “order” for pur-
of Section 1486 because the administrative record
is based on disputed issues of fact subject to the general
jurisdictional grant of 28 U.S.C. 3 1331.
Of the four “orders” entered by the FAA as part of
its November 14, 1984 decision, three were issued on the
purported authority of Chapter 20 of Title 49. One —
was issued on the authority of Chapter 31. When an
cy decision has two dis:inct bases, one of which caontdes
for exclusive jurisdiction in the courts of appeals, the en-
tire decision is reviewable exclusively in the appellate
court. In Gaunce, 708 F.2d 1290, for example, a pilot chal-
lenged the FAA’s order revoking her flight certificate.
The challenge was based on both the Federal Aviation
Act and the United States Constitution. The court none-
theless held that exclusive jurisdiction rested in the court
of appeals.
No. 85-1073
To permit Suburban to maintain this action in the United
States district court would contravene the clear intention
of Congress that agency decisions made under Chapter
20 be reviewed by courts of appeals. The separation of
Chapter 20 claims from Chapter 31 claims in this case
could only be effectuated through pifurcated en
But the purpose of having agency decisions reviewed
courts of appeals is to avoid duplicative factfinding. if
there is any ambiguity as to whe jurisdiction lies with
a district court or with a court of appeals we must resolve
that ambiguity in favor of review by a court of appeals.
If a decision of an administrative agency is based, in sub-
stantial part, on a statutory provision providing for exclu-
sive review by a court of appeals, then the entire pro-
ceeding must be reviewed by a court of appeals. We need
not reach the question of what constitutes “substantial
part” where, as here, three of the four orders in ques-
tion were issued under 49 U.S.C. § 1486. In the absence
of a clear indication that an alternative basis of jurisdic-
tion was intended, we must presume that Seetion 1486
(Chapter 20) applies.
Although a violation of a consent decree is primarily
a breach of contractual obligations, federal courts, both
trial and ° 4 re may enforce such decrees under the
doctrine o federal jurisdiction. The interpreta-
tion of a consent decree is a matter of law and subject
to plenary review on appeal. United States v. Board of
—” of City of Chicago, 717 F.2d 378, 382 (7th Cir.
We do not question the inherent authority of district
courts to enforce settlement agreements terminating li
tion pending before them, see McCall-Bey v. Franzen,
85-2415 (7th Cir. Nov. 13, 1985), but it is not clear that
® Suburban did not file a motion to enforce the consent decree.
Instead, it filed an entirely new complaint. Suburban argued that
it had been misled by the clerk of the district court into filing
a new claim. That allegation was rejected by the district court
No. 85-1073
the consent decree in this case creates unfulfilled substan-
tive obligations on the part of the City and the FAA. The
parties to the Butterfield litigation agreed to a particular
procedural format, that is, a specific method of dispute
resolution. The FAA and the City have complied with the
terms of the consent decree, and a motion to enforce the
consent decree in the district court, at this stage of the
proceedings, would serve no useful purpose.
To a certain extent the jurisdictional problem posed by
this case is one of characterization. The FAA need not
have characterized its decision as one made pursuant to
its authority under Section 1486. It might have issued its
order under the authority of the Airport and Airway Im-
provement Act. But since the FAA chose to rely on Sec-
tior .486, petitioners are effectively foreclosed from pur-
their claims in the district court. Congress has not
provided us with a mechanism for determining whether
a decision by the FAA to characterize its order as one
made under Section 1486 is genuine or not.
Suburban lastly contends that jurisdiction does not prop-
erly lie with this court because there are disputed issues
of fact regarding the scope and the content of the admin-
istrative record which must be resolved in the district
court. The asserted gross inadequacy of the administrative
record, Suburban contends, suggests that the November
14 decision is not an “order” for purposes of Section 1486.
We have previously stated that Section 1486 dictates a
broad construction of what constitutes an “order.” Sima
Products v. McLucas, 612 F.2d 309, 312-14 (7th Cir.), cert.
denied, 446 U.S. 903 (1980). See also State of New York
v. FAA, 712 F.2d at 808. The existence of a reviewable
administrative record is the determinative element in de-
fining an FAA decision as an “order” for purposes of Sec-
tion 1486. City of Alexandria, 728 F.2d at 646. “If the
FAA’s record were inadequate to permit review directly
in the court of appeals, we would be inclined to find that
the action, although final, is not an order within the mean-
ing of [Section 1486]. However, we are not presented with
that situation here.” Sima Products, 612 F.2d at 314 (cita-
tions omitted).
a ae eee
A-18
No. 85-1073
Suburban argues that if this court exercises jurisdiction
over the petition for review it must apply the — re-
view tage of the Administrative ies view Act
(the Hobbs Act), 28 U.S.C. § 2347(b). That Act provides
that where the agency is not required to hold a hearing
and has, in fact, not held a fo hearing, and when the
pleadings present genuine issues of material fact, the case
must be sent to the district court for a trial de novo. 28
U.S.C... § 2347(bX3).
This is a novel argument. No reported case has applied
the Hobbs Act to FAA final orders. There is no indication
that Congress intended the Act to apply to any agency
other than the five enumerated in the statute. There is
ample evidence indicating that Co intended for deci-
oar of the FAA to be reviewed solely under Section
IV
Before turning to the merits of this case we must also
announce our standard of review of FAA decisions. Sec-
tion 1486 provides that “findings of fact” by the FAA
“if supported by substantial evidence, shall be conclusive.”
In this case no formal hearings were conducted by the
agency. Instead, the FAA received written submissions
and conducted numerous nonadversary, informal proceed-
ings. Two circuits have held that appellate review of in-
formal agency action under Section 1486 is governed by
an “arbitrary and capricious” standard of review. Rom-
bough v. FAA, 594 F.2d 893, 896 (2d Cir. 1979); Tiger In-
ternational v. CAB, 554 F.2d 926, 935-36 (9th Cir.), cert.
son ule trch Ga es th In Starr v. FAA, oo
, 3l ir. 1978), this court appeared to apply an
abuse of discretion standard to review of inforrnat FAA
action under Section 1486. In Aircraft Owners & Pilots
Assoc. v. FAA, 600 F.2d 965, 969-72 & n.28 (D.C. Cir.
1979), however, the court held that informa! FAA action
made on the authority of Section 1486 should not be over-
turned uniess it is unsupported by substantial evidence.
Similarly, in State of South Dakota v. CAB, 740 F.2d 619,
ieee treeericiem cena
ee
A-19
No. 85-1073
621 (8th Cir. 1984), the court held that a Civil Aeronautics
Board decision under Secticn 1486 “based upon factual
consideration drawn from an informal, nonadversarial rec-
ord consisting of information and comments submitted by
opposing sides and interested parties” should be reviewed
under a substantial evidence standard. We agree with the
Eighth Circuit and District of Columbia Circuit that the
substantial evidence test is the appropriate standard of
review of FAA action under Section 1486. The fact that
the agency findings in this case were the product of an
informal information- ring process does not affect our
standard of review. Congress has indicated that the sub-
stantial evidence test is the proper standard for all FAA
decisions under Section 1486. also White Industries
v. FAA, 692 F.2d 532 (8th Cir. 1982); Pillai v. CAB, 485
F.2d 1018, 1023 (D.C. Cir. 1973) (applying substantial evi-
dence standard); Law Motor Frewht v. CAB, 364 F.2d
139, 144 (1st Cir. 1966).
Rombough, Tiger International, and Starr were proceed-
ings requesting exemptions from a valid agency rule. Those
cases relied heavily on Camp v. Pitts, 411 U.S. 138 (1973),
which distinguished between the standard of review under
the Administrative Procedure Act (“APA”) of agency ac-
tion taken after a formal hearing and agency action taken
without a formal hearing. Under the APA the substantial
evidence test is only appropriate when revie findings
made on a hearing record. 5 U.S.C. § 706(2XE); Camp,
411 U.S. at 141. The appropriate standard of review of
informal agency action under the APA is whether the ac-
tion was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706
(2XA); Camp, 411 U.S. at 142. The obvious difficulty with
the rationale of those cases reviewing informal FAA deci-
sions under the “arbitrary and nae”! or ‘“‘abuse of
discretion” standards is that the APA is clear! Teor not 9
cable to FAA action under Section 1486. Bo
ternational, 554 F.2d at 935-36, and Rombough, 594 te F 2
at 856, acknowledge that their reliance on Camp and the
APA is by analogy only. But the argument by analogy
is neither persuasive nor necessary where, as here, Con-
|
:
A-20
No. 85-1073
gress has created a special review provision specifically
designed to address precisely the type of case before the
court. The specific review provisions of Section 1486 take
precedence over the general provisions of the APA. Rom-
bough, 594 F.2d at 895-96.
In addition, we note that Tiger International, Rombough,
and Starr all involved requests for exemptions from valid
agency rules. All three courts were concerned with the
administrative and practical difficulties of applying a sub-
stantial evidence test to a petition for exemption. In Starr,
for example, the court noted that:
In proceedings requesting exemptions from a valid
agency rule. . . the bulk of evidence is petitioner’s,
since he must show that circumstances justify an ex-
emption in his case. And if an agency’s decision to
grant or mo | an exemption were to be judged under
a substantial evidence rule, that agency would be
forced to defend its standard rule in every exemp-
tion proceeding.
589 F.2d at 311. In the instant case these concerns are
nonexistent. The FAA in this case is not articulating a
standard rule and the bulk of the evidence is not petition-
ers’. We note that the facts in Aircraft Owners & Pilots
Association and State of South Dakota v. CAB, like those
in this case, also involved FAA approval of a specific con-
struction project.
In Association of Bank Travel Bureaus v. Board of Gov-
ernors, 568 F.2d 549 (7th Cir. 1978), this court was called
upon to determine the applicable standard of review of
decisions of the Board of Governors of the Federal Re-
serve System under 12 U.S.C. § 1848 which, like 49 U.S.C.
§ 1486, provides for exclusive review in the courts of
peals and states that administrative findings shall be con-
clusive if supported pe Hag eg v0 evidence.” The court
held, however, that where the board engaged in rulemak-
ing “which did not involve findings required by statute
to be made or the record after opportunity for an agency
hearing,” 568 F.2d at 552, the “arbitrary and capric:~us”
standard is the proper standard of review.
A-21
No. 85-1073
Association of Bank Travel Bureaus does not control
this case. Aside from the obvious distinction that this ear-
lier case involved the interpretation of a different statute,
the decisionmaking rocesses of the FAA in this case are
sufficiently unlike decisions of the Board of Gover-
nors in Association of Bank Travel Bureaus to warrant
our invocation of a substantial evidence rule. The “‘infor-
mality” of the FAA decisionmaking process is less impor-
tant to our decision than the fact that petitioner’s views
were represented at virtually every stage of the decision-
process. The arbitrary and capricious standard of
the APA is designed to protect agency decisions made
without the benefit of a complete record compiled in an
adversarial or yee weer gs proceeding. The lengthy
and elaborate decisionmaking procedures preceding the
FAA’s November 14 decision in this case are not the sort
of informal processes the drafters of the APA had in mind
be they adopted the arbitrary and capricious standard
of review.
We realize that our decision appears to conflict with
Tiger International or Rombough or Starr, “but we see
no inconsistency between them and our treatment of the
factually distinguishable case presently before us.” Tiger
International, 554 F.2d at 936, n.19. In the absence of
any other direction from Congress and in the absence of
the special concerns evident in the facts of those cases,
we must apply the plain language of Section 1486.
V
Having concluded that jurisdiction properly lies with this
court and having clarified the standard of review we turn
finally to the merits of the petitioners’ claims. The FAA
Record of Decision reports the EIS submitted by the
City and approved by the agency considered five alterna-
tives to the proposed development: (a) alternative modes
of travel; (b) utilization of other airports; (c) development
of a new airport; (d) alternative levels of aviation demand;
or (e) do nothing. The City rejected the possibility that
A-22
No. 85-1073
alternative modes of travel such as rail, bus, or automobile
of aviation demand at O’Hare. i , however,
where those limits should be set on w the pro-
Utilization of Other Airports. The airport that
cacue eadanee edema ide ante ceites oo
the Chicago Metropolitan Area is Midway Airport
A-23
No. 85-1073
ri eet rtation under a series of grants
to be funded by the F'AA’s Airport Improvement Pro-
gram. The initial grant was issued in ber 1984.
Petitioners allege that these terse statements are cum-
pletely inadequate and unsupported by substantial evi-
dence. The Record of Decision, however, represents mere-
] OT daca ae aes Ee into
proposed development Record of Decision
inco by reference ears of planning that pre-
it. Our task as an appe court is to determine
whether the FAA’s decision was based on substantial evi-
dence, and the evidence we must evaluate consists of the
entire administrative record. Of course, the size of the
record is not the determinative factor, but rather its com-
prehensiveness and the inherent reasonableness of the
ultimate determination.
Petitioners point out that perhaps half of the airline
passengers flying into O’Hare arrive merely to transfer
onto another eae
They ese transfer passengers could some-
soll tc Eel iuer aenests tatlne ton mond tec
new construction at O’Hare.
Petitioners’ argument presupposes that the City has
and air travelers find O'Hare to be the most convenient
or place to travel to and away from and to
make ers to connecting flights. Moving air traffic
to Milwaukee or Rockford or anywhere else is simply not
within the er of the City to accomplish. The decision
to make O'Hare, or any r airport, a “hub” airport
belongs to the airlines and not to the Government. The
City could consciously choose to do nothing about condi-
tions at O’Hare and uit the congestion and delays to
reach such an intol e level that airlines would be forced
A-24
No. 85-1073
to send flights to other cities. But the City cannot direct
the resulting overflow to any icular location. Nor is
there any tee that the shift away from O’Hare would
occur qui or without massive inconvenience to air trav-
elers. In ition, no one has calculated the impact of a
significant increase in flight operations in the airports
age tg. moder 5nd Fogel: Snag
to the environment of the communities surrounding those
Siceovar, the CA as Giltaliy salad ra eos
Moreover, the City has already for a limited
Shifting yer | to build any new runways until 1995.
flight operations might have merit ideally, but
: eae y the FAA that such a shift is not possible
or practical is amply supported by the record.
A shift of t operations to Chicago-owned Midway
Airport raises fewer of the problems that shifts to other
airports in other cities do. Several cities already have two
major airports. New York, for instance, has both LaGuardia
and Kennedy. But Midway has even Jess available space
than O’Hare and is situated in an area as densely popu-
lated as the area around O’Hare. Upgrading ay to
the point that it would eliminate the need to expand O’Hare
would entail enormous costs. Moreover, the City has al-
ready proposed to add significantly to Midway’s capacity.
Another possible solution to the problem of congestion
at O’Hare is to construct an rg new airport. Just
as O’Hare replaced Midway —— primary airport in the
area, a new airport could rep lace O'Hare as the princips
air travel facility. There are sage ti Pe difficulties with
idea. This new airport will 1D seco Cg sosuy vg Sry heer
as large as O’Hare. hls senenss Oak 4 os St eee then
seven thousand acres of undeveloped land will have to be
acquired. This land will have to be reasonably close to
the central city in order to make — Kangen pa
But Chicago is literally surrounded by
ulous suburbs. Locating thousands fe Lom sof
land would be no easy task. In addition, the vaullding of
a new airport would be the most expensive of all possible
solutions to the O’Hare problem. A new airport would
A-25
No. 85-1073
require years to construct and would have a difficult time
passing environmental requirements. Moreover, the City
and the FAA are in the midst of a formal study
of the possibility of building a new airport in the Chicago
area. A new airport may or may not be the best long-term
solution to the problems of airport travel in and out of
Chicago, but the City and the FAA needed to formulate
a plan to deal with the short-term problems at O’Hare.
The proposed dev represents a reasonable response
+ those problems one unable to satisfy everyone
ected 10
Apart from objections to the FAA’s consideration of al-
ternatives, Suburban challenges the treatment of the sub-
stantive environmental requirements of both NEPA and
the Clean Air Act. Those challenges can be characterized
as criticisms of the methodology employed by the FAA
in measuring projected increases in noise levels and de-
creases in air quality. Suburban, for instance, quarrels
with the FAA’s decision to calculate the noise impact of
being
service. But this particular decision of the FAA appears
to us to be reasonable. Moreover, “{iJt is clearly within
the expertise and discretion of the [FAA] to determine
roper testing methods.” Sierra Club v. United States
t of Transportation, 753 F.2d 120, 128 (D.C. Cir. 1985).
’s objections to the methodology and conclusions
of the FAA’s procedures do not begin to establish that
those procedures were not based on substantial evidence.
1° Two previous studies of proposals for a third airport have been
undertaken. One study examined the possibility of constructing a
new airport on landfill in Lake Michigan. Another study considered
the p of a new airport in northeast Indiana. Both
\dies were made av to the FAA and the City. A legis-
lative task force was recently appointed to examine the environ-
mental consequences of further expansion at O’Hare and the feasi-
bility. of constructing a new airport.
A-26
No. 85-1073
Suburban also alleges that FAA approval of the Airport
Layout Plan violates section 176(c) of the Clean Air Act,
42 U.S.C. § 7506(c). Under the Clean Air Act the EPA
is required to establish national ambient air quality stand-
ards. 42 U.S.C. § 7409. Each state must develop its own
implementation plan ar iy to achieve the national air
quality standards. 42 U.S.C. § 7810. Private citizens may
bring suit only for violations of the state plans and not
the national standards. 42 U.S.C. § 7604. See Council of
Committee nizations v. Metropolitan Tra ion
Authority, F.2d 663 (2d Cir. 1982). The FAA found
that the Plan will not violate the Illinois implementation
plan. Rec. Vol. VI, at 1679-80. Moreover, the FAA ap-
proved the ALP subject to the City’s agreement to take
steps to mitigate the impact on air quality. The City’s
compliance with this condition will be monitored by the
FAA, the EPA, and the Illinois EPA. Rec. Vol. IV, at
1731-33. Under these circumstances we do not find that
a violation of the Clean Air Act has occurred.
We do not. suggest that our brief discussion of the dif-
ficult choices confronting the and the FAA represents
an exhaustive inquiry inte the methodology, and cal-
culations of the planners of the O’Hare expansion. But
neither is such an inquiry required.
NEPA does set forth significant substantive goals for
the Nation, but its mandate to the agencies is essen-
tially procedural. . . . It is to insure a fully informed
and well-considered decision, not necessarily a deci-
sion the ju of the Court of Appeals . . . would
have reached had they been members of the decision-
making unit of the agency. Administrative decisions
should be set aside in this context, as in every other,
only for substantial procedural or substantive reasons
as mandated by statute, .. . not simply because the
court is unhappy with the result reached.
Vermont Yankee Nuclear Power Corp. v. Natural Re-
sources Defense Council, 435 U.S. 519, 558 (1978).
eee
A-27
No. 85-1073
It is axiomatic that reviewing courts should not substi-
tute their judgments for those of an agency as to the en-
vironmental consequences of its actions. Kleppe v. Sierra
Club, 427 U.S. 410, n.21 (1976). Our role is to ensure that
the FAA has taken a “hard look” at the environmental
consequences of its action. Jd. “A reviewing court deter-
mining whether the factual findings of the agency are based
on substantial evidence weighs evidence in the record
rting the decision against that which is contradictory.
As long as sufficient evidence exists that a reasonable
mind might accept as adequate to support a conclusion,
the agency’s findings must be upheld.” Aircraft Owners
& Pilots Ass’n, 600 F.2d at 970 (citations omitted). When
measured against this deferential standard, the FAA’s
decision to approve the Airport Layout Plan was clearly
reasonable and clearly supported by substantial evidence.
Suburban alleges that the City and the FAA have kept
“two sets of books” regarding the Master Plan decision-
ing process. The key element of the Master Plan is
the twenty-year forecast of “metropolitan aircraft opera-
tions demand.” Prior to the settlement of the Butterfield
litigation in 1982 the City forecast an operations demand
for the entire Chicago area of 943,000 flights for 1980;
1,064,500 flights for 1985; 1,234,500 flights for 1990; and
1,412,000 flights for 1995. Those estimates were based on
853,000 actual flights in 1974. O’Hare’s capacity was esti-
mated at 950,900 flights. Petitsoners refer to this data as
“the first set of books.”
In 1983 the twenty-year metropolitan forecast was re-
vised and this revision was employed in the final EIS and
the FAA’s Record of Decision. The 1983 revised forecast
estimated O’Hare’s capacity at 840,960 operations. The City
estimates that the completion of Phase II will enable O’Hare
to handle 920,000 annual operations in 1995. Without the
project the City estimates 840,900 operations would occur
in 1995. Petitioners refer to this revised forecast as the
“the second set of books.” In essence, Suburban contends
that this alleged second set of books was invented by the
City in order to conceal the deficiencies in the Master
|
A-28
No. 85-1073
Plan made evident by the alleged “first set of books.”
Specifically, petitioners contend that ‘“‘data, methodologies
and calculations” for several key elements of the “‘second
set of books” are “missing.”
We confess to being somewhat mystified by Suburban’s
argument. There is nothing missing from the administra-
tive record. All the “data, methodologies and calculations”
of the “first set of books” can be found in the MPS. In
fact, petitioners’ brief cites to the appropriate sections of
that study in its brief identifying the key elements of the
“first set of books.”
Suburban attempts to drive an artificial wedge between
the so-called first and second set of books—a w pre-
sumably created by the improper desire of the City to
mislead petiticners. But it — far more likely that
the 1983 revised estimate of O’Hare’s capacity was the’
result of a tardy recognition on the part of the City that
7 of unlimited expansion at O’Hare was not politi-
y feasible nor environmentally wise. The B ld
litigation and the activities of petitioners were no doubt
instrumental in this realization. The FAA’s Record of De-
cision notes that: “The City of Chicago decided to pursue
a constrained development for O’Hare that would limit
the future growth to that which could be handled by the
existing runways and available land and by assuming im-
proved air traffic control capabilities to accommodate in-
creased operations.” The FAA’s approval of the Airport
Layout Plan is clearly predicated on the City’s decision
not to add new runways to O’Hare. New runway construc-
tion would entail a new environmental review. It is obvi-
ous that Suburban simply does not believe that the City
intends to keep its word. But the City has represented
to this court and to the FAA that it has no plans to build
any new runways at O’Hare. Neither the FAA nor this
court is in a position to gauge the sincerity of the City’s
promises. Chicago has gone on record and if it breaks its
promises, it will certainly find itself again in court.
Suburban also alleges that the FAA’s November 14,
1984 Record of Decision violates the Airport and Airway
A-29
No. 85-1073
Improvement Act. We agree with the district court that
contrary to respondents’ contentions the Act applies to
the O’Hare expansion plans. But Suburban has not estab-
lished a violation of Act.
The Airport and Airway Improvement Act requires an
airport construction project receiving federal funds to be
“reasonably consistent” with existing development plans
for the area surrounding the airport. 49 U.S.C. § 2208
(bX1XA). The final EIS evidences great concern for the
impact of the er development on the surrounding
communities. entire decisionmaking process in this
case belies the contention that the FAA has ignored the
development concerns of the area around O’Hare. We
point out that the Northeastern Illinois Planning Commis-
sion, a state agency overseeing planning for the area of
the State in which O’Hare is located, concluded that the
proposed project was “consistent with plans and policies
of the Commission.” M.P.S., Vol. XVI, at B-17.
Suburban also contends that the FAA was required by
the Airport and Airway Improvement Act to obtain a gov-
ernor’s certificate before roving the Airport Layout
Plan. 49 U.S.C. § 220&bX7Xa) provides that no applica-
tion for federal funds for “a project involving airport loca-
tion, a major runway extension, or runway location” shall
be approved unless the governor of the state in which
the project is located certifies that there is a “reasonable
assurance” that the project will comply with applicable
air and water quality standards.
Suburban contends that the Airport Layout Plan con-
templates two “major runway extensions.” Runway 27R
and runway 32L are, in fact, to be extended under Phase
II of the a 08s The FAA, however, contends that these
are not “major” extensions for purposes of the Airport
and Airway improvement Act. FAA Order 5050.4 deboes
a major extension as one that will permit the accommoda-
tion of aircraft three decibels louder than those currently
using the runway. The FAA has determined that the pro-
oes runway extensions will account for only a one deci-
| inerease. “An agency’s interpretation of the statute
A-30
No. 85-1073
it must administer is crdinarily accorded deference.”
Illinois Commerce Commission v. ICC, 749 F.2d 875, 880
(D.C. Cir. 1984). We cannot say that the FAA’s determi-
nation that the runway extensions contemplated by the
ALP are not “major” is unreasonable."
Finally, we feel compelled to address the equities of this
case. Petitioners conceive of themselves as the innocent,
passive victims of a relentlessly expansive O’Hare. They
point out that many of the communities surrounding O’Hare
were established long before the airport had been built.
In all fairness, however, these same communities receive
enormous economic benefits from their proximity to O’Hare.
Moreover, many of these communities have resisted ai-
tempts by the City to harmonize their own land-use reg-
ulations with the aviation activity at O’Hare. In a perfect
world, petitioners would be able to reap the benefits of
their location and still be able to sleep without noise
disturbances at night. Unfortunately, the FAA and the
City are forced to operate in a world where even their
most carefully considered decisions are likely to adversely
affect some people. We are confident that the proposed
development represents an honest and careful attempt to
minimize those consequences and to accommodate the con-
flicting interests in the best possible manner.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
11 In view of our disposition of the petition, we need not con-
sider whether an injunction would have been an appropriate rem-
edy in this case petitioners been entitled to some relief. Nor
need we consider respondents’ motion to strike petitioners’ affi-
davits. We have considered Suburban’s remaining arguments and
find them to be without merit.
USCA 60064—Midwest Law Printing Co., Inc., Chicago—3-13-86—450
A-31
603 F.Supp. 1013
SUBURBAN COMMISSION; The Village of Addison; The
Village of Bensenville; The City of Des Plaines; The Village
of Elk Grove Village; The City of Elmhurst; The Village of
Franklin Park; The Village of Harwood Heights; The Vil-
lage of Itasca; The Village of Niles; The Village of Nor-
ridge; The City of Park Ridge; The Village of Schiller Park;
The City of Wood Dale; and Lawrence C. Bieneman,
Plaintiffs,
v.
Elizabeth Hanford DOLE, Secretary of the Department of
Transportation; Russe!l A. Olson, Regional Representative
of the Department of Transportation, Region V; Donald
Engen, Administrator of the Federal Aviation Adminis-
tration; Paul Bohr, Director, Great Lakes Region, Federal
Aviation Administration; John Guidotti, Supervisor, Illinois
Section, Chicago Airports District Office, Federal Aviation
Administration; The City of Chicago, a municipal corpo-
ration; and Thomas Kapsalis; Commissioner of the Depart-
ment of Aviation of the City of Chicago, Defendants.
No. 84 C 10387.
United States District Court,
N.D. Illinois, E.D.
Feb. 28, 1985.
MEMORANDUM OPINION
AND ORDER
ROVNER, District Judge.
Plaintiffs consist of numerous suburban municipal entities
surrounding O’Hare International Airport (“‘O’Hare’’), the
Suburban O’Hare Commission, an organization of Illinois
Municipal corporations created in 1982 for the purpose of
}
, a
A-32
protecting its members and their citizenry from environmental
damage caused by O’Hare, and Lawrence C. Bienemann, a
private citizen of one of the plaintiff villages.1 The defendants
are various Officials and employees connected with the Federal
Aviation Administration (““FAA”), the Department of Trans-
portation, and the City of Chicago and Chicago itself as a
municipal corporation (“City defendants”). In its complaint,
filed in this Court on December 4, 1984, Suburban O’Hare
challenges an adjudicatory decision of the FAA rendered on
November 14, 1984 by which the FAA approved Chicago’s 20-
year “Master Plan” for the construction and operation of
commercial air carrier facilities for the metropolitan Chicago
area to meet long-term aircraft operations demand at air carrier
airports. The FAA not only approved the expansion of aircraft
operations at O’Hare, but also rejected other [1015] alterna-
tives to handle the 20-year demand which would not increase
operations at O’Hare.2
Suburban O’Hare’s complaint consists of 78 pages, 188
enumerated paragraphs, and 6 exhibits, some of which are
lengthy in themselves. Although a detailed explanation of the
complaint is not necessary for purposes of this Opinion, some
discussion of the history and background of this case, as alleged
by plaintiffs in their complaint, is helpful to an understanding of
its present procedural posture.
1In this Opinion, the plaintiffs will be referred to collec-
tively as “Suburban O’Hare.”
2 The rejected alternatives set forth in the November 14,
1984 FAA decision are: a) consideration of “alternative modes
of travel” (e.g., rail, bus, and automobile); b) “utilization of
other airports” (e.g., General Mitchell Field in Milwaukee,
Wisconsin); c) the “development of a new airport” in the
Chicago area; d) consideration of “alternative levels of aviation
demand;” and e) “Do Nothing.” (Record of Decision, Com-
plaint, Exhibit 4 at pp. 4-5.)
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Background
The FAA’s November 14, 1984 decision was the culmina-
tion of a dispute that began many years before and resulted, in
part, from the procedural decision-making framework created
by a Consent Decree entered by Judge Stanley J. Roszkowski of
the United States District Court for the Northern District of
Illinois on October 14, 1982 in the case of State of Illinois ex
rel. Scott v. Butterfield, No. 74 C 2410 (“Illinois v. Butterfield
litigation”). According to the complaint, for many years the
mayors and city councils of the plaintiff communities had asked
for reduction in the noise and air pollution emanating from
O’Hare. Suburban O’Hare alleges that instead of addressing
these problems, the City defendants and the FAA had been
following a piecemeal approach to the physical development of
O’Hare which led to the ever-increasing expansion of O’Hare’s
capacity to accommodate flight operations far beyond its
Original design. Because the FAA awarded financial grants to
7 Chicago for the construction of individual projects without
examining the long-term expansion program as a whole, fre-
quently after the projects had already been built, the issue of
how best to meet long term aviation growth was ignored.
To stop this piecemeal expansion of O’Hare, the State of
Illinois and several of the plaintiffs in this case brought the
Illinois v. Butterfield \itigation, seeking disclosure of the City of
Chicago’s and the FAA’s long-term aviation goals and a
comprehensive exploration of alternatives to O’Hare expansion.
The plaintiffs sought declaratory and injunctive relief under the
National Environmental Policy Act, under the Administrative
Procedure Act, and under various other federal statutes, to stop
the expansion of O’Hare and the allegedly uncontrolled in-
| crease in aircraft operations, and noise and air pollution
resulting therefrom. In addition to examining the alternatives
to meet the long-term aviation operations demand for the
Chicago metropolitan area, the plaintiffs wanted the FAA to
select an alternative to meet the demand which did not involve
the ever-increasing expansion of O’Hare.
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A-34
The Consent Decree
The Consent Decree entered in the J/linois v. Butterfield
litigation created a procedura! framework for such com-
prehensive decision-making. According to Suburban O’Hare,
in 1982 Chicago had proposed a massive construction program
at O’Hare pursuant to an FAA sponsored “Master Plan.” That
Master Plan program involved the construction of hundreds of
individual projects, and Chicago was ready to proceed with a
number of these projects, designated as Phase I projects.
Illinois and the plaintiff municipal entities in the IJilinois v.
Butterfield litigation were prepared to try to stop construction
on Phase I projects by seeking injunctive relief. The Consent
Decree thus resulted from an attempt to resolve competing
interests: Phase I construction could proceed in return for the
promise of the FAA and Chicago that all other construction
proposed by the Master Plan, now called “‘Phase II’’ construc-
tion, would not commence until the FAA made a.substantive
decision to approve or disapprove the entire Master Plan
proposal for [1016] meeting the 20-year metropolitan aircraft
operations demand.
The Consent Decree itself provides in relevar art: that
“{a]ll future development at O’Hare will comply with all then
applicable requirements of Federal and State of Illinois laws
requiring environmental analysis and processing” (Consent
Decree, | 1a); that construction of certain projects would not
proceed until an Environmental Impact Statement was com-
pleted (Consent Decree, § Id); and that “the entire Master
Plan development for O’Hare .. . will be presented to the FAA
for Airport Layout Plan approval and the related environmen-
tal review, as a single, comprehensive submission” (Consent
Decree, §] If).
The Airport Layout Plan (“*ALP”’) is the final product of
the Master Plan process and is based on the various facilities
developed in the Master Plan to meet the 20 year long-term
A-35
aircraft operations demand of the Chicago metropolitan area.
A Final Environmental Impact Statement (““FEIS”) based on
the requirements of the National Environmental Policy Act, 42
U.S.C. § 4321, et seg. (“NEPA”), accompanied the ALP,
which was submitted by Chicago to the FAA in April 9, 1984.
On May 31, 1984, the FAA approved the FEIS. The FAA
described the issue in its Record of Decision reflecting the
approval of the ALP as follows:
The issue is whether to approve the Airport Layout Plan
submitted by the City of Chicago. Approval of it would
allow the City to proceed with implementing the proposed
development at the airport and to request Federal funds
for eligible items of development. Not approving it would
prevent the City from proceeding with the development in
a timely manner.
(Complaint, Exhibit 4 at p. 2.) On November 14, 1984, the
FAA approved the ALP as the final product of Chicago’s
Master Plan. In the Record of Decision, the FAA specifically
disavowed approval of the ALP for federal funding purposes:
Approval of the Airport Layout Plan does not represent
approval as far as necessity for the development is con-
cerned nor is it a commitment of Federal funds for any
future development. It signifies a concurrence for planning
purposes based on review of conformance with cwrrent
standards for safety, utility, and efficiency.
(Complaint, Exhibit 4 at p. 2.)
The Present Suit
On December 4, 1984, Suburban O’Hare filed its com-
plaint in this Court, together with a motion for a temporary
restraining order and for a preliminary injunction, supported by
A-36
extensive affidavits.2 The Complaint, although lengthy, is in two
counts. In Count I, Suburban O’Hare asserts that the FAA and
the City defendants, in approving the ALP in the November 14,
1984 decision, violated the “letter and the spirit” of the Consent
Decree; NEPA; the Airport and Airway Improvement Act of
1982, 42 U.S.C. § 2201, et seg. (““AAIA”’); Section 176(c) of
the Clean Air Act; and plaintiffs’ “constitutional right to full
disclosure of all relevant data, calculations and methodology.”
(Complaint, 4 172.) Suburban O’Hare alleges that it has a
claim for relief in Count I both to enforce the Consent Decree
and under the Administrative Procedure Act, 5 U.S.C. §§ 702,
706. (Complaint, ¥7 173, 175.) Suburban O’Hare prays that
this Court declare that the November !4, 1984 FAA decision
approving the Master Plan is “null, void and of no force and
effect ...” and that this Court enjoin the defendants “from
taking any steps in reliance” on that decision.4
[1] Both the City defendants and the FAA have moved to
dismiss Suburban [1017] O’Hare’s complaint for lack of sub-
ject matter jurisdiction and for failure to state a claim upon
which relief can be granted pursuant to Rules 12(b)(1) and
3 At a hearing on December 4, 1984 before this Court,
Suburban O’Hare conceded that its motion for a temporary
restraining order was prematurely brought because construction
of Phase II projects was not set to proceed immediately as
Suburban O’Hare thought. Thus, this Court denied the motion
for a temporary restraining order as moot. A decision on
Suburban O’Hare’s motion for 2 preliminary injunction has
been held in abeyance pending resolution of the defendants’
motion to dismiss for lack of subject matter jurisdiction and for
failure to state a claim upon which relief may be granted.
4 Count II of the complaint is brought on behalf of plaintiff
Lawrence Bieneman, incorporates all of the allegations of
Count I, alleges injury to Bieneman in his person and property,
and requests a hearing in accordance with Section 554 of the
APA, 5 U.S.C. § 554.
eds i
A-37
12(b)(6) of the Federai Rules of Civil Procedure.5 Because
this Court holds that it lacks subject matter jurisdiction over this
action, it does not reach the issues posed by the defendants’
motions to dismiss for failure to state a claim upon which relief
may be granted.
Finally, on January 14, 1984, Suburban O’Hare filed a
Petition for Review in the United States Court of Appeals for
the Seventh Circuit, in accordance with 49 U.S.C. § 1486(a),
which is presently pending. Therefore, the dismissal by this
Court of Suburban O’Hare’s complaint for lack of subject
matter jurisdiction does not affect Suburban O’Hare’s substan-
tive right to judicial review of the FAA’s November 14, 1984
decision: such review must be sought in the first instance in the
Court of Appeals. This Court’s holding thus aliows the Seventh
Circuit to examine the jurisdictional issue at the inception of
this case, thereby avoiding the potential waste of time, effort,
and expense to both the parties and the judiciary of litigating
5 In addition, Suburban O’Hare has moved to compel the
FAA to file the administrative record of its November 14, 1984
decision in this Court. After full briefing on the issue, and after
a pretrial conference on January 30, 1985 this Court ordered
that the FAA file the record in this Court on February 14, 1985
because a district court unquestionably has subject matter
jurisdiction to do that which is necessary until it decides the
issue of its subject matter jurisdiction. United States v. United
Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed.
884 (1947). Moreover, this Court was mindful of the fact that
the FAA in any event was preparing the record for filing in the
Seventh Circuit Court of Appeals because Suburban O’Hare
had filed a protective Petition for Review in that Court on
January 14, 1985, and 49 U.S.C. § 1486(d) requires the FAA to
file the record in the Court of Appeals within 40 days thereafter.
That date was subsequently extended to February 22, 1985 on
the FAA’s motion to extend the time for filing the record due to
exigent circumstances.
A-38
the case to final judgment in the district court only to have that
judgment reversed ultimately for lack of subject matter jurisdic-
tion.
DISCUSSION
I. Exclusive Jurisdiction Vests In The Court of Appeals to
Review FAA “Orders” Under Section 1486.
In its complaint, Suburban O’Hare seeks to set aside the
November 14, 1984 decision of the FAA that approved the
Master Plan and the ALP for O’Hare submitted by the City
defendants. In addition to approving the ALP, that decision
also made several other determinations under various FAA
regulations promulgated under various sections of the Federal
Aviation Act in Title 49 of the United States Code. The
decision itself reflects that the FAA conducted its review
pursuant to Parts 77, 152, and 157 of the FAA regulations,
found in 14 C.F.R., respectively relating to: (1) obstruction
evaluations for flight operations; (2) the federal airport aid
program; and (3) notice requirements for airport construction
or alteration. (Record of Decision, Complaint, Exhibit 4 at
p. 19.) The FAA also granted exemptions pursuant to Part 139
of 14 C.F.R.
In addition to authority under the Consent Decree, the
FAA’s review pursuant to Parts 77, 157, and 139 of 14 C.F.R.
clearly was conducted pursuant to authority vested in the FAA
under Chapter 20 of Title 49; the FAA’s review pursuant to
Part 152 of 14 C.F.R. was conducted pursuant to authority
under Chapter 31 of Title 49. The primary issue in this case is
whether jurisdiction to review the FAA’s November 14, 1984
decision vests in the ¢ strict court or in the Court of Appeals.®
6 All parties agree that the FAA’s November 14, 1984
Record of Decision was a final agency action ripe for judicial
review.
A-39
Contrary to the suggestion of the FAA, this issue is not
simple. Courts have encountered substantial difficulty in
determining when a challenged administrative action falls
within the scope of a statute directing exclusive review in the
Court of [1018] Appeals. No less an authority than Professor
Kenneth Culp Davis has stated that the law governing the
jurisdiction for review of challenged agency action “is both
inordinately complex and extremely confused.” K. Davis, Ad-
ministrative Law Treatise § 23.03-1, at 372 (Supp.1982). This
complexity and confusion has spawned a number of law review
articles. See, e.g., Comment, The Forum for Judicial Review of
Administrative Action: Interpreting Special Review Statutes, 63
B.U.L.Rev. 765 (1983); Currie and Goodman, Judicial Review
of Federal Administrative Action: Quest for the Optimum Fo-
rum, 75 Colum. L.Rev. | (1975); Note, Jurisdiction to Review
Federal Administrative Action: District Court or Court of
Appeals, 88 Harv. L.Rev. 980 (1975).
{2} Despite the abundance of case law and scholarly
commentary on the issue generally, the law is well settled that
exclusive jurisdiction vests in the Court of Appeals to review all
final orders of the FAA made under Chapter 20 of Title 49.
Title 49 U.S.C. § 1486(a) provides:
(a) Any order, affirmative or negative, issued by the Board
or Administrator under this chapter, except any order in
respect of any foreign air carrier subject to the approval of
the President as provided in section 1461 of this title, shall
be subject to review by the court of appeals of the United
States or the United States Court of Appeals for the
District of Columbia upon petition, filed within sixty days
after the entry of such order, by any person disclosing a
substantial interest in such order. After the expiration of
said sixty days a petition may be filed only by leave of
court upon a showing of reasonable grounds for failure to
file the petition theretofore.
(Emphasis supplied.) Section 1486(d) states that the court
“shall have exclusive jurisdiction to affirm, modify or set aside
the order... .”
A-40
In Gaunce v. de Vinceniis, 708 F.2d 1290 (7th Cir.1983),
cert. denied, U.S. 104 S.Ct. 417, 78 L.Ed.2d 354
(1983), the Seventh Circuit dismissed sua sponte an appeal
from a district court judgment granting the defendants’ motion
for summary judgment. An airman claimed that the FAA
violated her rights to procedural due process in revoking her
airman’s certificate. The FAA revoked the airman’s certificate
under its authority pursuant to Chapter 20 of Title 49. The
Seventh Circuit heid that Section 1486 expressly provides that
any challenge to an FAA decision made under Chapter 20 can
be brought only in the Court of Appeals, and dismissed the case
for lack of subject matter jurisdiction in the district court:
And most importantly, in plain disregard of the express
terms of section !486 of the Act, which prescribes direct
and exclusive review in the court of appeals, plaintiff
instituted the present action in the district court. This
action is in derogation of the well settled principle that
collateral attacks upon administrative orders are not per-
missible. Myers v. Bethlehem Shipbuilding Corp., 303 U.S.
41, 48-50, 58 S.Ct. 459, 462-463, 82 L.Ed. 638 (1938);
Robinson v. Dow, 552 F.2d 855, 858 (6th Cir.1975); Oling
v. Air Line Pilots Ass’n., 346 F.2d [270] at 276-277 [( 7th
Cir.1965)]; see Administrative Procedure Act § 10(b), 5
U.S.C. § 703 (1976) (“The form of proceeding for judicial
review is the special statutory review proceeding relevant
to the subject matter in a court specified by statute or, in
the absence or inadequacy thereof, any applicable form of
legal action ... in a court of competent jurisdiction.”); see
also Denberg v. United States Railroad Retirement Board,
696 F.2d 1193 (7th Cir. 1983). It is clear from the
statutory scheme established by Congress that the F.A.A.
order was not subject to collateral attack in the district
court. Robinson v. Dow, supra; Oling v. Air Line Pilots
Ass’n., supra. Thus the district court lacked subject matter
jurisdiction over the claims asserted by plaintiff-appellant.
708 F.2d at 1291-93 ( footnote omitted ). In dismissing the case
for lack of subject matter jurisdiction in the district court, the
Seventh Circuit adhered to a long line of [1019] decisions in
this Circuit and others recognizing the congressional mandate in
es
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A-4]
Section 1486 of exclusive jurisdiction to review Chapter 20 FAA
orders in the Courts of Appeal.”
Thus, if the November 14, 1984 decision of the FAA was
made solely under Chapter 20 of Title 49, subject matter
jurisdiction to review that decision clearly vests only in the
Court of Appeals under Section 1486. Suburban O’Hare sets
forth three principal arguments to support its contention that
the November 14, 1984 decision must be reviewed in the
district court. First, Suburban O’Hare contends that the
decision was made not under Chapter 20 of Title 49, but under
Chapter 31 of Title 49, the federal airport aid statute. Accord-
ingly, Section 1486, which applies only to FAA orders made
7 See, e.g., City of Aurora v. Hunt, 749 F.2d 1457, 21 ERC
2132 (10th Cir.1984) ( Tenth Circuit exercised its jurisdiction to
review an FAA rule issued under Chapter 20 and under 14
C.F.R. Part 77); City of Alexandria v. Helms, 728 F.2d 643
(4th Cir.1984) (Fourth Circuit reversed for lack of subject
matter jurisdiction the district court’s issuance of a preliminary
injunction to prevent implementation of a Chapter 20 FAA
order regarding flight patterns of Washington National Air-
port); State of New York v. Federal Aviation Administration,
712 F.2d 806, (2d Cir.1983) (Second Circuit affirmed the
district court’s dismissal, for lack of subject matter jurisdiction,
of a challenge to the FAA’s refusal to amend an airport
operating certificate it had previously issued under 49 U.S.C.
§ 1428 ( part of Chapter 20) }; Sima Products Corp. v. McLucas,
612 F.2d 309 (7th Cir.1980); cert. denied, 446 U.S. 908, 100
S.Ct. 1834, 64 L.Ed.2d 260 (1980) (Seventh Circuit held that a
challenge to regulations promulgated under 49 U.S.C. § 1356
(part of Chapter 20) governing inspections of passengers was
reviewable exclusively in the Court of Appeals); City of Roches-
ter v. Bond, 603 F.2d 927 (D.C.Cir. 1979) (D.C.Circuit held
that a “no hazard” determination of the FAA pursuant to 49
U.S.C. § 1501 (part of Chapter 20) was an order reviewable
exclusively in the Court of Appeals, following other courts
“consistently holding that judicial review under these statutes is
exclusive.” Id. at 934); Oling v. Air Lines Pilots Association, 346
F.2d 270 (7th Cir.1965) (Seventh Circuit reversed a challenge
to an FAA action based on Section 408 ( part of Chapter 20) ).
A-42
under Chapter 20, does not vest exclusive jurisdiction to review
the decision in the Court of Appeals. Closely tied to this
argument is Suburban O’Hare’s assertion that the district court
clearly has subject matter jurisdiction to hear Suburban
O’Hare’s claim that the defendants violated the Consent Decree
in the J/linois v. Butterfield litigation. Finally, Suburban O’Hare
contends that even if the November 14, 1984 decision was
made pursuant to Chapter 20 of Title 49, the decision does not
constitute an “order” reviewable exclusively in the Court of
Appeals under Section 1486 because the FAA administrative
record is either nonexistent or is based upon disputed issues of
fact which must be examined and reviewed in the first instance
in the district court pursuant to the general jurisdictional grant
of 28 U.S.C. § 1331 and Sections 702 and 706 of the Adminis-
trative Procedure Act. Each of these arguments is examined
below.
Il. The November 14, 1984 FAA Decision Consisted of FAA
Orders Rendered Under Both Chapters 20 and 31 of Title 49.
[3] Suburban O’Hare contends that the November 14,
1984 decision of the FAA was not an “order” made under
Chapter 20 and thus is not exclusively reviewable in the Court
of Appeals under Section 1486 which provides for such ex-
clusive review only for orders made under “this chapter.” 49
U.S.C. § 1486(a). Instead, Suburban O’Hare asserts that the
‘‘order” challenged here is the FAA’s substantive and proce-
dural compliance with the Airport and Airway Improvement
Act of 1982, 49 U.S.C. § 2201, et seg.,8 and as such was made
under Chapter 31 of Title 49.
8 The Airport and Airway Improvement Act of 1982
(“AAIA”), 49 U.S.C. § 2201, et seg., is the current federal
airport aid statute appearing in Chapter 31 of Title 49. Its
immediate precessor was the Airport and Airway Development
Act of 1970 (P.L. 91-248), which in turn was immediately
preceded by the Federal Airport Act of 1946 (P.L. 377). Each
of these statutes has always been codified separately from
Chapter 20 of Title 49.
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A-43
Suburban O’Hare attached the November 14, 1984 letter
approving the ALP and the 20 page Record of Decision of the
FAA as Exhibits 3 and 4, respectively, to its complaint. As
such, they are part of the [1020] complaint pursuant to Rule 10
of the Federal Rules of Civil Procedure. Suburban O’Hare
contends that by this approval, reflected in Exhibits 3 and 4, the
FAA violated the letter and spirit of the Consent Decree and
several federa! laws, including the AAIA, NEPA, the Clean Air
Act, and the APA. The November 14, 1984 decision reflects
that the FAA relied upon 14 C.F.R. Part 77 (promulgated
under Chapter 20), Part 157 ( promulgated under Chapter 20),
and Part 152 (promulgated under Chapter 31). In addition,
the FAA granted the City an exemption from the 14 C.F.R.
Part 139 regulations (promulgated under Chapter 20). Thus,
of the four “orders” entered by the FAA, three were under
Chapter 20.9
8 Part 157 states that it is promulated under 49 U.S.C.
§§ 1350, 1354(a), and 1355, See 14 C.F.R. Part 157 at p. 156
(1984). Part 77 states that it is promulgated under 49 U.S.C.
§§ 1304, 1348, 1354, 1431, and 1501. The FAA’s authority for
the grant to the City of an exemption from the clearance
standards of airport taxiways under Part 139 of 14 C.F.R. arises
from 49 U.S.C. §§ 1432 and 1421(c). All of these statutory
references are part of Chapter 20. for example, Section 1350
States:
§ 1350. Establishment or construction of airports and
landing areas not involving expenditure of Federal funds.
In order to assure conformity to plans and policies for, and
allocations of, airspace by the Administrator under section
1348 of this title, no airport or landing area not involving
expenditure of Federal funds shall be established, or
constructed, or any runway layout substantially altered
unless reasonable prior notice thereof is given the Adminis-
trator, pursuant to regulations prescribed by him, so that
he may advise as to the effects of such construction on the
use of airspace by aircraft.
By contrast, Part 152 of 14 C.F.R. was promulgated under the
Airport and Airways Development Act of 1970, as amended, 49
U.S.C. § 1701, et seg., which subsequently became part of
Chapter 31 of Title 49.
A-44
Suburban O’Hare does not contest the fact that the
November 14, 1984 FAA decision constituted at least in part an
“order” entered under Chapter 20. In its memorandum in
opposition to the defendants’ motion to dismiss, Suburban
O’Hare stated: “‘Of the ‘orders’ entered by the FAA on Novem-
ber 14, 1984, two of those orders were under Chapter 20.” (P.
4.) Suburban O’Hare contends that “[t]hese orders are not
challenged in this action.” (Pp. 4-5.) Suburban O’Hare further
contends that because the November 14, 1984 FAA decision
was also based on the AAIA, Chapter 31 of Title 49, the
exclusive jurisdiction of the Court of Appeals to review the
entire order under Section !486 is usurped by the inclusion of
this additional element. Indeed, Suburban O’Hare’s allegation
that the defendants have violated the Consent Decree is
intimately related to its argument that the November 14, 1984
FAA decision should have been made properly under Chapter
31. That argument was succinctly summarized by Suburban
O’Hare in its. memorandum in opposition to the defendants’
motion to dismiss, at pp. 16-17:
In this lawsuit, Plaintiffs also seek to enforce the 1982
Consent Decree which sets the legal framework for the
substantive decision made by the FAA. As set forth in the
Complaint and as admitted by Defendants, the Consent
Decree remedied the past piecemeal practices followed by
Chicago and the FAA in giving isolated grants, and
required the FAA to make the substantive decisions nor-
mally made at the time grant applications were received
now—at the time the entire Master Plan was sub-
mitted—rather than wait until individual isolated grant
applications are received.
Chicago and the FAA admit these allegations for the
purposes of these motions, and the FAA itself stated that it
was making these decisions now in its November 14, 1984
approval. However, in their memoranda, Defendants
make unsupported assertions that the requirements of the
Airport and Airway Improvement Act of 1982 do not
apply because no grant application has been made. That
argument is exactly what the Consent Decree framework
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A-45
was intended to prevent by requiring the substantive
decision to be made now rather than after the project was
almost complete.
( Footnote omitted. )
Suburban O’Hare’s argument does have some meritin that
there is support in the [1021] Consent Decree, in the Final
Environmental Impact Statement, and in the November 14,
1984 FAA decision itself for Suburban O’Hare’s position that
the parties to the Consent Decree contemplated that that
decision would be rendered under the AAIA, Chapter 31. The
defendants’ contention that the AAIA is not applicable because
it is uncontested that no federal funding has yet been sought for
the Phase II construction is unpersuasive because it is equally
uncontested that federal funds, in the amount of at least $43
million, will be sought ultimately to help fund the Phase II
construction. The defendants can not avoid their obligations
under the AAIA simply because they have not yet applied for
such funding, particularly in light of Suburban O’Hare’s allega-
tions, which must be taken as true for purposes of these motions
to dismiss, that such piecemeal after-the-fact funding of con-
struction projects resulting in the expansion of O’Hare was
precisely what the Consent Decree was designed to prevent.
Moreover, after briefing was completed on these motions, the
Court was informed that the City did indeed apply for a $1.2
million federal grant for Phase II construction as early as
November 30, 1984, and the plaintiffs have been granted leave
to amend their complaint to so allege.
Nonetheless, Suburban O’Hare has not demonstrated that
the FAA’s approval under Chapter 20 pursuant to Parts 77,
139, and 157 was either unnecessary or insubstantial. Neither
has Suburban O’Hare alleged that those parts of the FAA’s
November [4, 1984 decision that are based on Chapter 20 are
separable from those parts based on Chapter 31. Nor has
Suburban O’Hare alleged that the FAA’s Chapter 20 orders are
a mere ruse to avoid review of the defendants’ conduct
A-46.
pursuant to the Consent Decree and under the APA in this
Court.
In light of the overwhelming weight of authority that
mandates exclusive review in the Court of Appeals whenever a
FAA decision based on Chapter 20 is challenged, see discussion
below, this Court believes that it cannot exercise its general
federal question jurisdiction to review the FAA November 14,
1984 decision which at least in part, as Suburban O’Hare
concedes, consists of orders rendered pursuant to the FAA’s
statutory authority under Chapter 20 of Title 49. Thus, even if
the defendants did in fact violate the Consent Decree as
Suburban O’Hare contends by failing to “make the substantive
decisions [required by the AAIA] now in its November 14,
1984 approval,” it is undisputed that the November 14, 1984
FAA decision was made, at least in part, under Chapter 20 of
Title 49. As such, it is reviewable only by the Court of Appeals
under Section 1486.
The November 14, 1984 FAA decision is a unitary order
approving, under various statutory requirements, the form that
O’Hare will take when Phase II construction is completed.
Suburban O’Hare challenges the FAA’s procedural and
substantive compliance with various federal laws in reaching
that decision to approve the Master Plan and the ALP for
O’Hare. Moreover, Suburban O’Hare seeks not to set aside an
isolated component of the decision, but that this Court declare
that “the November 14, !984 FAA decision approving the City
of Chicago’s Master Plan project is null, void and of no force
and effect ...” and that an injunction be entered restraining
defendants “from taking any steps in reliance on the November
14, 1984 FAA decision. .. .” Accordingly, Suburban’s O’Hare’s
complaint is an attack on a single unitary order entered by the
FAA. In conceding that the November 14, 1984 FAA decision
is based in part on Chapter 20, Suburban O’Hare has in effect
conceded that the entire decision must be reviewed only in the
Court of Appeals.
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A-47
Even if the November 14, 1984 FAA decision should have
been made only pursuant to Chapter 31 of Title 49, the AAIA,
the cases cited by Suburban O’Hare do not support its con-
tention that the district court has general federal question
jurisdiction under 28 U.S.C. § 1331 and the APA te review an
order under Chapter 31. Suburban O’Hare contends that the
jurisdictional issue before this Court is_ directly con-
[1022 ]trolled by the decisions in Schwab v. Quesada, 284 F.2d
140 (3d Cir.1960), and City of Dallas v. Rentzel, 172 F.2d 122
(Sth Cir.1949), cert. denied, 338 U.S. 858, 70 S.Ct. 99, 94 L.Ed.
525 (1949), both involving the Federal Airport Act, a pre-
decessor to the AAIA. Suburban O’Hare asserts that in these
cases the FAA itself successfully argued to the Circuit Courts of
Appeal that because decisions made under the Federal Airport
Act were made under a Chapter in Title 49 different from
Chapter 20, the exclusive jurisdiction provision of Section 1486
did not apply, thus rendering those decisions unreviewable in
the Courts of Appeal. But none of the cases cited by Suburban
O’Hare address the jurisdiction of the district court to review
decisions under the Federal Airport Act. Indeed, in Schwab,
the Third Circuit found no jurisdiction to review the decision
under the Federal Airport Act because it held that the decision
was unreviewable in any court. 284 F.2d at 142. In City of
Dallas, the Fifth Circuit acknowledged the FAA’s argument
that the order under the Federal Airport Act was unreviewable
in any court, but found it unnecessary to reach the issue. 172
F.2d at 123 and nn. 7, 8. Cf. Morris v. Helms, 681 F.2d 1162,
1164 (9th Cir.1982}. Whatever the continuing validity of the
Schwab and City of Dallas cases, particularly in light of the new
AAIA which is at issue here, they do not stand for the
proposition that if the Court of Appeals lacks jurisdiction to
review an FAA order, the district court necessarily has such
jurisdiction: the order may simply be unreviewable.
Because this Court holds that the FAA November 14, 1984
decision is reviewable in the Court of Appeals under Section
A-48
1486, this Court need not, and, therefore, does not decide
whether a Chapter 31 FAA order pursuant to the AAIA is
unreviewable in any court. To the contrary, district courts have
assumed general federal question jurisdiction to decide cases
brought under the AAIA as well as other federal statutes,
although these courts have not directly addressed the
jurisdictional issue because they were not directly confronted
with it and because they unquestionably had jurisdiction over
claims based on other federal statutes. See, e.g., Life of the
Land v. Brinegar, 485 F.2d 460 (9th Cir. 1973), cert. denied,
416 U.S. 961, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974); Citizens
Airport Committee of Chesterfield County v. Volpe, 351 F.Supp.
52 (E.D.Va.1972).
It is worth noting, however, that Chapter 31 contains no
judicial review provision itself. Moreover, the Supreme Court
has recently held that neither the general federal question
jurisdiction under 28 U.S.C. § 1331 nor the APA provide an
independent basis for establishing jurisdiction in the district
court to review an agency’s decision when a statute directs an
exclusive form of judicial review:
With respect to our hoiding that there is no jurisdiction
pursuant to § 1331, the dissent argues that § 405(h)
{prescribing a different form of review for Medicare
claims] is not a bar to § 1331 jurisdiction because Ringer’s
challenge to the Secretary’s rule is “arising under” the
Administrative Procedure Act, not the Medicare Act. Post,
at 647 [104 S.Ct. at 2025], But the dissent merely resur-
rects an old argument that has already been raised and
rejected before by this Court in Weinberger v. Salfi [422
U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975)], supra.
As we have already noted earlier, ante, at 636 [104S.Ct. at
2022], the Court rejected the argument that the claimant
in Salfi could bring his constitutional challenge to a Social
Security Act. Ringer’s claim may well “‘aris[e] under” the
APA in the same sense that Salfi’s claim arose under the
Constitution, but we held in Sa/fi that the constitutional
claim was nonetheless barred by § 405(h). It would be
anomalous indeed for this Court to breathe life into the
ja acihidaveseld JA étiteabbind P
ae a EVE tte Sees Pare
:
:
A-49
dissent’s already discredited statutory argument in order to
give greater solicitude to an APA claim than the Court
thought the statute allowed it to give to the constitutional
claim in Salfi..
Heckler v. Ringer, U.S. __, 104 S.Ct, 2013, 2025-26, 80
L.Ed.2d 622 (1984); see [1023] also Califano v. Sanders, 430
U.S. 99, 104-09, 97 S.Ct. 980, 983-86, 51 L.Ed.2d 192 (1977)
(Supreme Court held that Section 702 of the APA must be used
together with 28 U.S.C. § 1331 and with another substantive
statute to confer subject matter jurisdiction on the district court;
Section 702 and 28 U.S.C. § 1331 alone do not confer jurisdic-
tion ).
The holding of this Court that the November 14, 1984
decision of the FAA is reviewable only in the Court of Appeals
because it is a mixed decision made under the FAA’s authority
based on both Chapter 20 and Chapter 31 of Title 49 is
consistent with the law of this and other Circuits. In cases
involving the review of FAA orders which also contained claims
made under other statutes or the Constitution, and in cases
involving paratilel statutes with provisions similar to Section
1486 vesting exclusive jurisdiction in the Court of Appeals for
judicial review of final agency orders, this Circuit and others
have uniformly held that judicia! review rests exclusively in the
Court of Appeals. For example, as noted above in Gaunce v.
deVincentis, 708 F.2d 1290 (7th Cir. 1983) cert. denied,
U.S. , 104 S.Ct. 417, 78 L.Ed.2d 354 ( 1983), the Court of
Appeals sua sponte dismissed for lack of jurisdiction on appeal
from a district court judgment upholding the procedural due
process afforded an airman by the FAA in a hearing relating to
the revocation of an airman’s certificate. As here, the plaintiff
in Gaunce raised constitutional claims, but the Seventh Circuit
held that even the assertion of a claim under the Constitution,
jurisdiction over which indisputably vests in the district court
under 28 U.S.C. § 1331, cannot divest the Court of Appeals’
exclusive jurisdiction to decide the entire order:
A-50
The statutorily prescribed requirements cannot be dis-
pensed with merely because the administrative proceed-
ings dealt with an agency’s proof of specified regulatory
violations, while appellant is raising a due process con-
stitutional claim in the judicial proceeding. So long as
effective means for judicial review are ultimately available
where the constitutional claims can be raised, appellant
may not dispense with the requirement of prior adminis-
trative review, otherwise judicial review would be an
abstract process.
Id. at 1293.
In City of Alexandria v. Helms, 728 F.2d 643 (4th
Cir.1984), the Fourth Circuit reversed a preliminary injunction
issued by the district court to prevent implementation of an
FAA order relating to a “scatter plan” for flight patterns at
Washington’s National Airport instituted by the FAA to more
equitably distribute aircraft noise among area surrounding the
airport. The court held that the district court lacked subject
matter jurisdiction because Section 1486 “vests review of FAA
orders exclusively in the Courts of Appeals.” Jd. at 645. The
Court of Appeals flatly rejected the plaintiffs’ contention that
their claims under NEPA provided an independent basis for
jurisdiction in the district court:
Alexandria and Arlington additionally contend that
the National Environmental Policy Act ( NEPA) provides
an independent basis for district court jurisdiction in this
case. Cf. City of Irving v. Federal Aviation Administration,
539 F.Supp. 17, 34 (N.D.Tex.1981) (FAA’s decision not
to issue an EIS was subject to review in the district court
when there was no order to review and only claim was
under NEPA). However, when review of an agency order
is at issue and when Congress has vested exclusive jurisdic-
tion over that review in the Courts of Appeals, NEPA does
not provide independent grounds for district court jurisdic-
tion.
Id. at 646 ( footnote omitted ).
ee =
Bk wrens ne bere
A-51
Similarly, in City of Rochester v. Bond, 603 F.2d 927
(D.C.Cir.1979), the District of Columbia Circuit Court of
Appeals rejected the argument that plaintiffs NEPA claim
provided a basis for concurrent district court jurisdiction for
review of an FAA advisory determination that construction of a
radio antenna near an airport would be “no hazard,” a
determination which the court deemed to constitute a final
order [1024] exclusively reviewable only in the Court of
Appeals:
First, we disagree that the district court may exercise
concurrent jurisdiction merely because a violation of
NEPA is alleged. The allegation may be raised directly in
the courts of appeals; and insofar as it may affect the
lawfulness of a directiy appealable order we think it must
be.
Id. at 936 ( footnotes omitted ).1°
The Seventh Circuit has also held that the inclusion of a
NEPA claim provides no basis for concurrent jurisdiction
permitting district court review of an agency’s decision. In City
of West Chicago, Illinois v. United States Nuclear Regulatory
Comm’n., 701 F.2d 632 (7th Cir.1983), the court affirmed the
district court’s dismissal, for lack of subject matter jurisdiction,
of a suit challenging the Nuclear Regulatory Commission’s
1° In a footnote, Bond distinguished State of Illinois ex rel.
Scott v. Butterfield, 396 F.Supp. 632 (N.D.II1.1975), because
there was no final agency action by the FAA in the Illinois v.
Butterfield \itigation at that time. 603 F.2d at 936, n. SI.
Clearly the district court had subject matter jurisdiction in the
Illinois v. Butterfield \itigation under 28 U.S.C. § 1331 when it
entered the Consent Degree in 1982. Suburban O’Hare’s
argument that the decision of the district court set forth in State
of Illinois ex rei. Scott v. Butterfield, 396 F.Supp. 632 (N.D.IIL
1975) that it possessed subject matter jurisdiction is res judicata
here is disingeneous in light of the fact that no final FAA
orders, Chapter 20 or otherwise, which the district court was
asked to review, had issued at that time.
A-52
order allowing the demolition of certain buildings under the
parallel judicial review provision, 28 U.S.C. § 2342(4), con-
cerning review of the Commission’s Order. The Seventh Circuit
concluded that the district court lacked jurisdiction to determine
if the agency’s order complied with NEPA:
Despite the admission in its brief, the City comtinues to
argue that the district court had jurisdiction to review the
claim of illegal segmentation under NEPA. Susquehanna
Valley Alliance v. Three Mile Island Nuclear Reactor, 619
F.2d 231 (3d Cir.1980), certiorari denied sub nom. Gener-
al Pub. Utilities Corp. v. Susquehanna Valley Alliance, 449
U.S. 1096, 101 S.Ct. 893, 66 L.Ed.2d 824. See supra at
650-652. Suffice it to say that as in this case, where final
agency action brings an order within the ambit of 28
U.S.C. § 2342(4), the district court has no concurrent
jurisdiction with the court of appeals to review the order
for NEPA compliance. City of Rochester v. Bond, 603 F.2d
927, 936 (D.C.Cir.1979).
Id. at 652 n..21.1' See also Sierra Club. v. United States Dept. of
Transportation, 753 F.2d 120, No. 83-1832 (D.C.Cir.1985)
(Court of Appeals exercised jurisdiction under Section 1486 to
decide a challenge to two FAA orders entered under Chapter
20 even though the petitioners claimed that, in addition to
NEPA, a section in another chapter of Title 49, 49 U.S.C.
11 The district court’s decision in City of West Chicago,
which was affirmed, also held that the inclusion of a due
process claim did not alter the Court of Appeals’ exclusive
jurisdiction:
Involved here is an express jurisdictional mandate to the
court of appeals which this court must respect. Although
the plaintiff is raising a constitutional claim, it is directed
to, and arises from the NRC’s grant of a license amend-
ment under the AEA. Therefore, this constitutional chal-
lenge pertains to the final order issued by the NRC and
must be reviewed by the court of appeals.
City of West Chicago, Illinois v. United States Nuclear Regu-
latory Comm’n, 542 F.Supp. 13, 15 (N.D.IIL.1982). (Citations
omitted. )
A-53
§ 303(c), had been violated by the order); City of Aurora v.
Hunt, 749 F.2d 1457. 21 ERC 2132 (10 Cir.1984) (Tenth
Circuit reviewed an FAA rule issued under Chapter 20 and also
decided a challenge under NEPA pursuant to its exclusive
jurisdiction under Section 1486). Thus, Suburban O’Hare’s
claims under Chapter 31 of Title 49, as well as its claims under
NEPA, and the Clean Air Act, and the due process con-
stitutional claim, cannot defeat Section 1486 exclusive jurisdic-
tion in the Court of Appeals of an FAA decision rendered in
part under Chapter 20.
The Seventh Circuit has stated repeatedly that even where
doubt exists as to whether jurisdiction properly lies in the Court
of Appeals or the district court to review an agency decision
which arguably [1025] may fall within the ambit of an
exclusive Court of Appeals’ jurisdictional provision, all doubt
must be resolved in favor of direct review by the Court of
Appeals. E.g., Indiana & Michigan Electric Co. v. United States
Environmental Protection Agency, 733 F.2d 489, 491 (7th
Cir.1984) (A “judge” made presumption [exists] in favor of
court of appeals review in doubtful cases ... [because] district
court review adds another laver to the review process... .);
Field Container Corp. v. Interstate Commerce Comm’n., 712
F.2d 250, 255 ( 7th Cir.1983), cert. denied, US. 104
S.Ct. 701, 79 L.Ed.2d 167 (1984) (“... the policy of routing
review proceedings to the courts of appeals directly where the
statute will allow this entitles us to resolve our doubts in favor
of [court of appeals] jurisdiction ...”); Denberg v. United
States Railroad Retirement Board, 696 F.2d 1193, 1197 (7th
Cir.1983), cert. denied, ___. US. 104 S.Ct. 1706, 80
L.Ed.2d 180 (1984) (Any jurisdictional ambiguity is resolved
in favor of Court of Appeals jurisdiction.). Indeed, even
Suburban O’Hare’s assertions that this Court must exercise its
jurisdiction under §1331 and the APA to decide its claims that
the defendants violated the Consent Decree cannot vitiate the
A-54
exclusive jurisdiction of the Court of Appeals in the first
instance. '2
Ill. Suburban O’Hare’s Allegations Of Consent Decree Viola-
tions Do Not Affect The Exclusive Jurisdiction Of the Court
Of Appeals.
Suburban O’Hare asserts that the Consent Decree entered
into between the parties in the Ji/linois v. Butterfield litigation
provided that the FAA was to approve or disapprove Chicago’s
20 year long-term development program to meet Chicago’s
future aviation needs through the “Master Plan” decision-
making process. To accomplish this, the FAA was to compare
Chicago’s Master Plan proposal with all other alternatives to
meet Chicago’s long-term aviation needs, and toward this end
the FAA was to prepare or complete a Final Environmental
Impact Statement pursuant to the requirements of NEPA.
According to Suburban O’Hare, the Consent Decree provided a
procedural framework in which both FAA substantive and
procedural decisions, normally not undertaken until the receipt
of a federal grant application, would be made at the time the
Master Plan was submitted and before any Phase II construc-
tion was to begin.
By entering into the Consent Decree, the plaintiffs in the
Illinois v. Butterfield \itigation purportedly received the promise
of the FAA and the City defendants that construction of Phase
I] would not begin until the defendants followed the procedural
12 See Assure Competitive Transportation, Inc. v. United
States, 629 F.2d 467, 472 (7th Cir. 1980), cert. denied, 449 U.S.
1124, 101 S.Ct. 941, 67 L.Ed.2d 110 (1981) (court held that
exclusive jurisdiction lies in the court of appeals to review an
1.C.C. order even though the order itself was not directly
attacked because “‘the practical effect of a successful suit would
contradict or countermand a Commission order,” quoting B.F.
Goodrich Co. v. Northwest Industries, Inc., 424 F.2d 1349, 1353-
54 (3d Cir. 1970), cert. denied, 400 U.S. 822, 91 S.Ct. 41, 27
L.Ed.2d 50 (1970)).
A-55
prerequisites set forth in the Decree leading to a decision to
approve or disapprove the Master Plan. In turn, the defendants
allegedly were allowed to proceed with Phase I construction
without preparing an Environmental Impact Statement and
without ongoing litigation over Phase I construction.
As an initial matter, it must be noted that if Suburban
O’Hare was indeed interested in enforcing the terms of the
Consent Decree, as it contends, it should have filed a motion for
such enforcement and the imposition of civil contempt and
other relief in the Jilinois v. Butterfield litigation, Case No. 74 C
2410. Instead, Suburban O’Hare filed a new complaint which
was randomly assigned to this Court. Suburban O’Hare states
that in filing a new complaint it merely followed the directions
of the Office of the Clerk of this District. Suburban O’Hare
allegedly was informed by that Office that the Illinois v.
Butterfield case was closed for administrative purposes when
the Consent Decree was entered in October, 1982. Moreover,
Judge [1026] Roszkowski, who entered the Consent Decree,
has since transferred to the Western Division of the United
States District Court for the Northern District of Illinois.
According to Suburban O’Hare:
The office of the Clerk of the Court has advised us that
when a matter is presented to the assignment desk that
relates to a closed case that had been assigned to Judge
Roszkowski, the assignment desk would assign the matter
to a new judge by lot. That procedure was followed in this
case.
Plaintiffs Memorandum On Consent Decree Issues at
p. 10 n. 5S.
Unfortunately, however, Suburban O’Hare neglects to
mention that the Office of the Clerk never informed it to file a
new complaint in the district court. This Court has been
informed by Stuart Cunningham, the Clerk, that Suburban
O’Hare properly should have filed a motion for enforcement of
the Consent Decree in the //linois v. Butterfield litigation, Case
A-56
No. 74 C 2410, at which point it would have been reassigned at
random by order of the Executive Committee from Judge
Roszkowski’s docket if Judge Roszkowski did not wish to retain
the case.
In this instance, although the result may have been the
same because the matter ultimately was assigned to this Court
at random by lot, insistence on the proper procedure is not
trivial. First, Judge Roszkowski, the judge who entered the
Consent Decree and who was familiar with the progress of the
Illinois v. Butterfield \itigation to that point, should have been
given the opportunity to retain it. Judicial economy dictates
such a result as this Court was forced to search through three
containers of court files from the federal warehouse of this
district to familiarize itself with the case.'3 Second, this Court
hesitates to establish a precedent of allowing the procedure
adopted by Suburban O’Hare to be followed in the future.
Because this Court and others in this District are burdened with
literally hundreds of cases, it is both wasteful and counter-
productive to file a new complaint whenever enforcement of a
previously-entered consent decree in another case is sought. '4
[4-6] Nonetheless, Suburban O’Hare quite properly
argues that there is no question that subject matter jurisdiction
13 Many of the court documents in the J/linois v. Butterfield
litigation were missing from these containers. Indeed, because
the Consent Decree itself was missing, and because Suburban
O’Hare omitted to attach it to the complaint and then belatedly
submitted a version of the Consent Decree different from that
submitted by the defendants, much needless time and energy
were devoted in searching for it.
14 The cases cited by Suburban O’Hare as precedent for
the procedure it followed here of filing a new complaint simply
do not support such a procedure. For example, in Sarabia v.
Toledo Police Patrolman’s Association, 601 F.2d 914 (6th
Cir.1979), nothing in the court’s opinion indicates that the
enforcement order appealed from was entered in any case but
the original case in which the consent decree was entered.
ee
A-57
exists generally in the district court to enforce its own consent
decree. In the Consent Decree entered in the Illinois v.
Butterfield litigation, the district court expressly retained
jurisdiction to enforce the decree, but even had it not done so, it
is well-settled that a district court has ancillary jurisdiction to
enforce its own consent decree. Sarabia v. Toledo Police
Patroiman’s Ass’n., 601 F.2d 914 (6th Cir.1979); see generally,
Wright, Miller & Cooper, Federal Practice and Procedure:
Jurisdiction 2d. § 3513. Although the normal remedy for a
consent decree violation is the imposition of civil contempt, see,
e.g., United States v. Board of Education of the City of Chicago,
744 F.2d 1300, 1308 (7th Cir. 1984): Shakman v. Democratic
Organization of Cook County, 533 F.2d 344 (7th Cir.1976),
cert. denied, 429 U.S. 858, 97 S.Ct. 156, 50 L.Ed.2d 135 (1976),
the court may award any appropriate relief in addition to
enforcing the decree. See, e.g., Shakman, supra at 351 (award-
ing attorneys’ fees and expenses as well as compensatory
damages); Vuitton et Fils S.A. v. Carousel Handbags, 592 F.2d
126, 130 (2d Cir.1979) (“‘The district court is not free to
exercise its discretion and withhold an or-[1027jder in civil
contempt awarding damages, to the extent they are estab-
lished.”’).
Despite the existence of jurisdiction generally to enforce its
own judgments, the question posed in this case is whether the
district court must exercise its jurisdiction to enforce a Consent
Decree that in essence requires it to review an agency decision
which Congress has mandated by statute is reviewable only in
the Court of Appeals. This question is a matter of first
impression so far as this Court is able to determine.'5 For the
15 From the inception of this case, this Court has repeat-
edly asked the parties to brief, by citing relevant authority, the
issue of whether Suburban O’Hare’s claim of Consent Decree
violations affects the exclusive jurisdiction of the Court of
Appeals to review the FAA November 14, 1984 decision.
Neither the FAA nor the City defendants have cited any cases,
( Footnote continued on following page)
A-58
reasons set forth below, this Court holds that it cannot exercise
subject matter jurisdiction to enforce the Consent Decree under
the circumstances presented by this case.
[7] First, the cases discussed in Sections I and II of this
Opinion unequivocably hold that the assertion of any claim for
relief over which the district court has general federal question
jurisdiction does not divest the exclusive jurisdiction of the
Court of Appeals to review an FAA decision based in part on
Chapter 20 under Section 1486. For example, in Gaunce v.
deVincentis, 708 F.2d 1290, 1293 (7th Cir. 1983), cert. denied,
(Footnote continued from preceding page)
and none of the cases cited by Suburban O’Hare are on point.
For example. in Motorola, Inc. v. Computer Displays Inter-
national, 739 F.2d 1149 (7th Cir.1984), the Seventh Circuit
ruled that it did not possess jurisdiction to review a district
court’s finding of civil contempt for violation of a consent
decree in the absence of a district court order that included the
imposition of an appropriate sanction as well as the finding of
contempt. Motorola does not stand for the proposition that a
Court of Appeals never has original jurisdiction to enforce a
consent decree when the exercise of that jurisdiction is neces-
sary to effectuate its exclusive jurisdiction to review a Chapter
20 order. To the contrary, another case cited by Suburban
O’Hare, Brennan v. Winters Battery Manufacturing Co., 531
F.2d 317 (6th Cir.), cert. denied, sub. nom., Winters Battery
Manufacturing Co. v. Usery, 425 U.S. 991, 96 S.Ct. 2202, 48
L.Ed.2d 815 reh. denied, 429 U.S. 873, 97 S.Ct. 192, 50 L.Ed.2d
155 (1976), suggests that a Court of Appeals does indeed
possess original jurisdiction to enforce consent decrees:
“Enforcement by judicial decree provides a basis for contempt
proceedings in this court in event of noncompliance.” Jd. at 321
(citation omitted). Similariy, the case of District of Columbia
v. Train, 533 F.2d 1250 (D.C.Cir.1976), also cited by Subur-
ban O’Hare, does not support its argument that Courts of
Appeal may never hear cases involving consent decrees. To the
contrary, the court’s opinion suggests that the Court of Appeals
could properly decide the consent decree issues if the decree
was within the scope of exclusive statutory grant of jurisdiction.
Id. at 1254. See also n. 17 and accompanying text, infra.
Ber A EE Re Se BETIS Pe Nee ald,
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A-59
oe a 104 S.Ct. 417, 78 L.Ed.2d 354 (1983), the
plaintiff's assertion of a due process constitutional claim, over
which a district court unquestionably possesses general federal
question jurisdiction, had no affect on the Seventh Circuit’s
holding that jurisdiction vests exclusively in the Court of
Appeals to review a Chapter 20 order. '®
Similarly, Suburban O’Hare’s assertion of the defendants’
Consent Decree violations cannot deprive the Court of Appeals
of its exclusive jurisdiction conferred by statute to review the
FAA decision at issue in this case in the first instance. The
Court of Appeals may exercise jurisdiction over the enforce-
ment of the Consent Decree as well as its exclusive jurisdiction
under Section 1486 because it may exercise jurisdiction over
any proceedings which are incidental or ancillary to an original
action where original jurisdiction over the action lies in the
Court of Appeals.'7 Because the Court of Appeals is capable of
deciding all of the issues raised by Suburban O’Hare in
conducting its Chapter 20 review, the Con-[{1028]sent Decree
cannot affect subject matter jurisdiction over this case.
[8, 9] Second, parties cannot by their agreement alone
confer subject matter jurisdiction over a case which would not
otherwise exist. Green v. Department of Commerce, 618 F.2d
836, 839 (D.C.Cir.1980); Sadat v. Mertes, 615 F.2d 1176 (7th
Cir. 1980). Thus, even though parties may, by entering into a
consent decree, waive certain rights to which they otherwise
16 See also the district court’s decision in City of West
Chicago, Illinois v. United States Nuclear Regulatory Comm’n.,
542 F.Supp. 13, 15 (N.D.IIl. 1982), affd, 701 F.2d 632 (7th
Cir.1983), quoted at n. I1, supra.
17 As the Seventh Circuit stated in Natural Gas Pipeline
Co. v. Federal Power Comm’n., 128 F.2d 481, 484 (7th
Cir. 1942), “the court may by its own orders protect the rights of
the parties in any manner in which any trial court of equity or
general jurisdiction might do so in an injunction suit.”
A-60
might be entitled,1® they may not waive the right to exclusive
review of a Chapter 20 order under Section 1486 in the Court of
Appeals by entering into a consent decree and thereby confer
such jurisdiction by agreement on the district court.
Third, the Consent Decree in the TJilinois v. Butterfield
litigation by its terms excludes from its scope a review of the
actual FAA decision reached in approving or disapproving the
Master Plan. The operative paragraph of the Decree, states:
“The FAA has not made any determinations with respect to
[the Master Plan approval] and this Decree does not bind the
FAA with regard to any determinations it may make respecting
these matters.” (Consent Decree, J 1g at p. 4.) In one sense,
this language adds nothing because it merely states the obvious:
the FAA was not bound by the Consent Decree itself to either
approve or disapprove the Master Plan proposal after meeting
the procedural and substantive requirements of the Decree and
the various laws the parties were bound to follow. On the other
hand, this language is consistent with the FAA’s argument that
it never intended to, and never did, enter into a Consent Decree
which would render any decision it made on the Master Plan
reviewable in the district court.
Finally, at a pretrial conference held in this Court on
January 30, 1985, Suburban O’Hare in effect conceded that its
claims under the Consent Decree afford Suburban O’Hare
substantiaily the same relief as it seeks under its claims brought
pursuant to the APA. (Transcript of Proceedings at pp. 71-72.)
In fact, Count I of the complaint is grounded both in the APA
and in the Consent Decree. If the Consent Decree adds nothing
to the complaint, then the exclusive jurisdiction of the Court of
18 For example, in this case, it is not inconceivable, as the
City defendants have conceded, that the defendants might have
waived their right by entering into the Consent Decree not to be
subject to a private right of action for violations of certain
substantive laws such as the Clean Air Act. See Transcript of
Proceedings of January 30, 1985 before this Court at pp. 55-57.
A-61
Appeals to review the November 14, FAA decision under
Section 1486 cannot be altered by the Consent Decree.
This Court’s holding that the existence of the Consent
Decree and Suburban O’Hare’s claims thereunder do not affect
the exclusive jurisdiction of the Court of Appeals to review the
November 14, 1984 FAA decision does not suggest that the
Consent Decree was never enforceable in the district court.
Contrary to the defendants’ suggestion, the Consent Decree is
not a useless document that provides no substantive rights to
Suburban O’Hare. Subject matter jurisdiction to enforce the
Decree and to address any claimed violations of the various
laws that the defendants bound themselves to follow in the
Decree unquestionably existed in the district court before
November 14, 1984, the date the FAA rendered its decision.
Once that decision issued, however, jurisdiction vested solely in
the Court of Appeals to review it pursuant to Section 1486
because it was rendered under both Chapter 20 and Chapter 31
of Title 49.
IV. The November 14, 1984 FAA Decision Is An “Order”’.
[10] Suburban O’Hare argues that, should this Court
decide that the November 14, 1984 decision of the FAA
approving the Master Plan and the ALP for Phase II construc-
tion at O’Hare falls within the ambit of Section 1486 because it
was at least in part made under Chapter 20, then it is not an
“order” within the meaning of Chapter 20. Suburban O’Hare’s
contention is based on the following reasoning:
[1029] 1) The scope of judicial review provided in Section
1486 is that the FAA’s factual findings are subject to
review under the “substantial evidence” test. 49 U.S.C.
§ 1486(e).
2) The “substantial evidence” test necessarily con-
templates that an agency adjudicatory hearing ‘“‘on the
record” was conducted pursuant to Section 556 and 557 of
the APA. Citizens to Preserve Overton Park, inc. v. Volpe,
402 U.S. 402, 414, 91 S.Ct. 814, 822, 28 L.Ed.2d 136
(1971).
A-62
3) In this case, no FAA hearing under Section 556 and 557
of the APA was conducted because the FAA is not
statutorily required to conduct such a hearing by Title 49.
4) Where no formal administrative record has been pre-
pared, or where there are disputes about the contents of
the Overton Park record of the agency whose decision is
the result of informal rather than a formal adjudication,
the district court must exercise its general federal question
jurisdiction to review the decision in the first instance to
resoive all disputed issues of fact.19 Moreover, the dis-
covery procedures available in the district court are essen-
tial to delineate the extent of the administrative record.
As the FAA points out, Suburban O’Hare’s argument is
premised upon twisting the logic of the Supreme Court’s
holding in Citizens to Preserve Overton Park, Inc. v. Volpe, 401
U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Suburban
O’Hare contends that because a “substantial evidence” test is
authorized under the APA only when an agency conducts a
formal adjudicatory hearing under Sections 556 and Section
557, this 1:equires the reverse: i.e., where, as in Section 1486, a
“substantial evidence” test is required, the agency must have
conducted a formal Sections 556, 557 adjudicatory hearing.
The problem with this argument is that it addresses only the
19 Suburban O’Hare contends that the disputed issues of
fact in this case include disputes in the following major areas:
“A. The metropolitan aircraft operations demand and the
traffic allocation between Q’Hare and Midway (i.e., the
traffic splits of the metropolitan demand ).
B. The ‘capacity’ of O’Hare to accommodate its share of
the metropolitan aircraft operations demand and the delay
associated with that capacity assumption.
C. The alternatives to O’Hare expansion to accommodate
the forecast aircraft operations demand.
D. The determinations made under Section 176(c) of the
Clean Air Act and the related FAA regulations cited in the
Complaint.”
Suburban O’Hare’s Motion For An Order To Compel Federal
Defendants To File The Record, at pp. 9-10.
se Nad ih ahd Ah alee cat
A-63
scope of or the standard for judicial review and is not directed
at all to the reviewing court’s subject matter jurisdiction to
conduct the review.
Both the Seventh Circuit and other Circuit Courts of
Appeal have held that application of a “substantial evidence”
test under Section 1486 is solely a question of the court’s scope
of review. Aircraft Owners and Pilots Association v. Federal
Aviation Administration, 600 F.2d 965 (D.C. Cir.1979);
Rombough v. Federal Aviation Administration, 594 F.2d 893
(2d Cir. 1979); Starr v. Federal Aviation Administration, 589
F.2d 307 (7th Cir.!978); Tiger International, Inc. v. Civil
Aeronautics Board, 554 F.2d 926 (9th Cir.1977), cert. denied,
434 U.S. 975, 98 S.Ct. 532, 54 L.Ed.2d 467 (1977). Rather
than considering the issue to be a jurisdictional question, these
courts clearly considered it only to be related to the scope of
judicial review and have resolved it by applying an “arbitrary
and capricious” standard to review of Section 1486 orders
where no formal adjudicatory hearing was required or con-
ducted. 20
In Sima Products Corp. v. McLucas, 612 F.2d 309 (7th
Cir.1980), cert. denied, 446 U.S. 908, 100 S.Ct. 1834, 64
L.Ed.2d 260 (1980), the Seventh Circuit squarely held [ 1030]
that any issue over the adequacy or completeness of an
administrative record is not a jurisdictional issue. After the
district court dismissed for lack of subject matter jurisdiction a
challenge to an FAA regulation regarding the use of x-ray
devices at airports, the plaintiff argued that the FAA’s action
cculd not be an “order” because the administrative record
contained disputed issues of fact and was inadequate. The
Seventh Circuit rejected this argument, stating:
20 As the court staied in Aircraft Owners and Pilots Assoc.
v. Federal Aviation Administration, 600 F.2d 965, 971 n. 28
(D.C.Cir.1979), there is no real functional difference between
the “substantial evidence” and “arbitrary and capricious” tests,
and thus this distinction is largely only one of semantics.
A-64
This argument misses the point: a factual hearing before
the district court judge is not necessary if judicial review is
based on the agency record. See Investment Company
Institute {Board of Governors of the Federal Reserve
System), supra, 551 F.2d [1270] at 1276 [(1977)], citing
Currie & Goodman, Judicial Review of Federal Adminis-
trative Action: Quest for the Optimum Forum, 75 Colum.
L.Rev. | (1975); Verkuil, Judicial Review of Informal
Rulemaking, 60 Va.L.Rev. 185 (1974). Moreover, where
factfinding within the competence of the agency is re-
quired, section 1486( a) permits the case to be remanded to
the agency for further factual development if the adminis-
trative. record is inadequate for review. Under such
circumstances it makes no difference whether the reviewing
court is a court of appeals or a district court, and ‘there
seems to be no reason to inject another tribunal into the
process.’ Environmental Defense Fund, Inc. v. Hardin, 138
U.S.App.D.C. 391, 396-397, 428 F.2d 1093, 1098-99
(D.C.Cir.1970).
Id. at 313-14.
The Supreme Court has also rejected Suburban O’Hare’s
argument that where one party disputes the adequacy or factual
basis underlying an agency’s administrative record, jurisdiction
properly rests only in the district court to the exclusion of a
statutory grant of exclusive jurisdiction in the Court of Appeals.
In FCC v. ITT World Communications, Inc., __— US.
104 S.Ct. 1936, 80 L.Ed.2d 480 ( 1984), ITT contended, just as
Suburban O’Hare contends here, that jurisdiction was vested in
the district court under the APA to review FCC orders that
were reviewable by statute exclusively in the Court of Appeals
because an insufficient record existed, the contents of which ITT
disputed. The Supreme Court held that the sufficiency of the
administrative record is irrelevant to the jurisdictional issue:
Respondents contend that these provisions [5 U.S.C. §§
703, 704] confer jurisdiction in the present suit because the
record developed upon consideration of the rulemaking
petition by the agency does not enable the Court of
Appeals fairly to evaluate their ultra vires claim. Tf,
A-65
however, the Court of Appeals finds that the administrative
record is inadequate, it may remand to the agency, or in
some circumstances refer the case to a special master.
Indeed, in the present case, the Court of Appeais has
remanded the case to the agency for further proceedings.
We conclude that the District Court lacked jurisdiction
over respondents’ ultra vires claim.
104 S.Ct. at 1940. (Citations omitted; emphasis supplied. )
Similarly, in Harrison v. PPG Industries, Inc., 446 US.
57L, 100 S.Ct. 1889, 64 L.Ed.2d 525 (1980), involving a
challerge to certain EPA orders in informal adjudications
subject to Court of Appeals jurisdiction under § 307(b)(1) of
the Clean Air Act, the Supreme Court rejected the view that the
district court was the preferable forum because of the avail-
ability of discovery to augment the record. The Court noted:
This is an argument to be addressed to Congress, not to
this Court. It is not our task to determine which would be
the ideal forum for judicial review of the Administrators
decision in this case. Rather, we must determine what
Congress intended when it vested the courts of appeals
with jurisdiction under § 307(b)( 1) to review “any other
final action.” The language of the statute clearly provides
that a decision of the sort at issue here is reviewable in a
court of appeals, and nothing in the legislative [1031]
history points to any different conclusion.
446 US. at 593, 100 S.Ct. at 1898. (Citations omitted; footnote
omitted. )
And, in following the holding of the Supreme Court in
ITT, supra, the District of Columbia Circuit rejected its own
prior precedents, cited here as well by Suburban O’Hare,
Stating, “We find untenable any suggestion that appellate
review of nonfinal agency action may be inadequate due to
Court of Appeals’ inability to take evidence.” Telecommuni-
cations Research and Action Center v. FCC, 750 F.2d 70
(D.C.Cir.1984).
A-66
Surburban O’Hare’s attempt to distinguish these cases on
the basis that they involved orders that resulted from “rulemak-
ing” rather than “informal adjudication” is unavailing. Harri-
son v. PPG Industries, Inc., 446 U.S. 578, 100 S.Ct. 1889, 64
L.Ed.2d 525 (1980), clearly did involve the review of orders
that can only be properly characterized as “informal adjudica-
tions” as is plainly apparent from the Supreme Court’s descrip-
tion of those orders as “agency action predicated on neither
formal adjudication nor informal rulemaking ... .” 446 U.S. at
593, 100 S.Ct. at 1898. In addition, the authorities heavily
relied upon by Suburban O’Hare in support of their argument
that district court review in the first instance is most proper
whenever informal agency adjudication is at issue, Professors
David Currie and Frank Goodman, emphasize that the dis-
tinctions they had drawn between informal adjudication and
formal rulemaking are not clean cut:
Informal adjudication, we repeat, frequently does generate
an administrative record suitable for the purpose of review.
Moreover, scholars and practioners of administrative law
are coming to recognize a need for greater procedural
regularity in the field of informal agency action. The
reforms they contemplate—including a requirement that
the adminstrator state the facts and reasons upon which he
bases his decision—would, as a byproduct, yield more
adequate records.
Currie and Goodman, Judicial Review of Federal Adminis-
trative Action: Quest for the Optimum Forum, 75 Colum.L.Rev.
1, 57-58 (1975) (footnotes omitted ).
Particularly in this light, it is significant that the adminis-
trative record of the November i4, 1984 FAA decision in this
case filed in this Court on February 22, 1985 is voluminous, it is
well in excess of 10,000 pages, and it contains both hearing
transcripts and public comments. Although this Court makes
no finding as to the adequacy of the record or as to whether the
record does in fact contain certain allegedly missing crucial
“data, calculations and iaethodology” or resolve Suburban
er mn
A-67
O’Hare’s allegations of disputed issues of fact, any challenge to
the adequacy of the record is not jurisdictional. Moreover,
given limited judicial resources, a review of the administrative
record for its adequacy should be accomplished only once, most
properly by the Court of Appeals under Section 1486.
Thus, although some courts once considered judicial re-
view provisions based upon agency “orders” as contemplating
“review of a decision based on evidence presented in a quasi-
judicial proceeding ...” United Gas Pipe Line Co. v. Federal
Power Comm’n., 181 F.2d 796, cert. denied, 340 U.S. 827, 71
S.Ct. 63, 95 L.Ed. 607 ( 1950), that view is no longer valid. See
Investment Company Institute v. Board of Governors, 55\ F.2d
1270, 1276-1277 (D.C.Cir.1977). Review statutes covering
“orders” have been extended now to cover regulations, infor-
mal rulemaking, informal adjudications, and any other decision
capable of review on the basis of an agency record of any kind,
sufficient or insufficient.
Suburban O’Hare devotes much effort to asserting that the
legislative history of the APA indicates that Congress intended
that trial type hearings would be required when a party asserts
that an agency’s decision is based on disputed issues of fact.
Even Suburban O’Hare concedes, however, that its argument is
foreclosed by the Supreme Court’s decision in Citizens to
Preserve [1032] Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct.
814, 28 L.Ed.2d 136 (1971).2' That identical suggestion was
strongly rejected by the District of Columbia Circuit in The
Izaak Walton League of America v. Marsh, 655 F.2d 346, 362
and n. 38 (D.C. Cir.1981). This Court rejects Suburban
O’Hare’s argument as well because it suggents too much: in
essence, it inevitably leads to the conclusion that any time a
party merely alleges that the agency’s administrative record is
21 Nonetheless, it proceeds to suggest that this Court
should overrule the Overton Park decision of the Supreme
Court because it is allegedly unconstitutional. Needless to say,
this Court politely declines such a bold invitation.
A-68
insufficient, or that it is based on disputed fact issues, a special
judicial review statute that vests exclusive jurisdiction in the
Court of Appeals is immediately set aside in favor of jurisdic-
tion in the district court.
[11] In the aftermath of the Supreme Court’s decision in
FCC v. ITT Industries, Inc., it is clear that where an agency
conducts inadequate fact finding procedures resulting in an
administrative record based on substantial disputed issues of
fact, the appropriate remedy is not de novo fact finding in the
district court, but remand by the Court of Appeals to the
agency, where the agency can provide adequate additional fact
finding under its statutory mandate. See Vermont Yankee vy.
Natural Resources Defense Council, 435 U.S. 519, 98 S.Ct.
1197, 5S L.Ed.2d 460 (1978). Another alternative, suggested
by the Supreme Court in FCC v. ITT World Communications,
Inc., supra 104 §.Ct. at 1940, is the appointment of a special
master by the Court of Appeals. See 28 U.S.C. § 2347(b)(3).
In any event, where Congress has selected and mandated
jurisdiction in the Court of Appeals, the appropriate forum for
judicial review of a challenged agency decision cannot shift
from the Court of Appeals to the district court depending upon
the adequacy or inadequacy of the administrative record.
CONCLUSION
For the reasons set forth in this Opinion, this court hoids
that jurisdiction to review the November 14, 1984 FAA deci-
sion vests exclusively in the Court of Appeals under 49 U.S.C.
§ 1486 in the first instance and that this Court lacks jurisdiction.
Accordingly, the complaint is dismissed for lack of subject
matter jurisdiction under Rule 12(b)(1) of the Federal Rules
of Civil Procedure.
A-69
US DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
NOV. 14, 1984
Mr. Thomas Kapsalis
Commissioner
Department of Aviation
City of Chicago
City Hall, Room 1111
Chicago, IL 60602
Dear Mr. Kapsalis:
Chicago O’Hare International Airport
Airport Layout Plan Approval
This letter approves the Airport Layout Plan (ALP) dated
March 1984 for Chicago O’Hare International Airport, sub-
mitted by your letter dated April 9, 1984. Two copies of the
ALP are enclosed. The airport development plan approval is
based upon recognition of and adherence to the following:
1. Approval of the ALP is not to be considered as a
determination of necessity or as a commitment of Federal
funding for accomplishment of the project development.
Inclusion of the proposed development signifies a con-
currence for planning purposes based on review of con-
formance with current standards for safety, utility, and
efficiency. Actual facility development wiil be governed by
adherence to development standards applicable at the time
the development is undertaken.
2. A Final Environmental Impact Statement ( FEIS)
was approved May 31, 1984. Mitigation and other condi-
tions established in the FEIS, this ALP approval letter, and
other related Federal documents, shall be carried out when
the development plan is implemented. They are listed in
A-70
the enclosed Summary of Environmental Mitigation and
Other Provisions, which are a condition of this ALP
approval.
3. Airport Improvement Program requirements stipu-
late that all development programs be reasonably con-
sistent with the plans of planning agencies for the devel-
opment of the area in which the airport is located, that fair
consideration has been given to the interest of communities
in or near the airport, and that development programs
provide for the protection and enhancement of the quality
of the environment.
4. Reviews of the landing area development proposed
on the plan were conducted in accordance with Parts 77,
152 and 157 of the Federai Aviation Regulations. Based
on consideration of safe and efficient use of airspace, the
FAA offers no objection to the proposed ultimate airspace
utilization as depicted on the development plan, subject to
compliance with the enclosed Airspace Review Comments.
The development plan will be afforded the status of a plan
on file for the purpose of Federal Aviation Regulation Part
77 obstruction evaluations and Part 152 airport aid pro-
gram.
This review did not include an evaluation of actua! con-
struction for which separate notice is required under Part 77 of
the Federal Aviation Regulations. Prior to constructing any
facility, structure or other items on the airport, notice consistent
with requirements of Part 77 must be filed and evaluated (FAA
Form 7460-1, or Preapplication for Federal Assistance ).
If action or construction is planned without Federal aid
which will change the status or geometrics of runways, taxi-
ways, aprons or other operating areas of the airport, notice
must be filed in accordance with Part 157 (FAA Form 7480-1 )
A-71
We trust the foregoing provides a reasonable explanation
of the conditions inherent in our approval. If, however, you
desire further clarification, please contact this office.
Sincerely,
/s/ JOHN GUIDOTTI
Supervisor, Illinois Section
Chicago Airports District Office
Enclosures
A-73
A-72
TABLE OF CONTENTS
SECTION TITLE PAGE
i a l
II. Introduction and Background.............ccccecesceeeees l
ERE OR ONC a ee 2
BU. Oey OIE ci bbiccsscnsncdtttictidedcsiicinasididis 3
V. Alternatives to Proposed Development Program 4
VI. Proposed Development ..................cccccsccecccesceceeee 5
VEE. ABBCICD EAVWORMORE .......csciccccccccceccccoscsorsccceoseess 8
VIII. Environmental Considerations ...............c..ccccccce00- 9
Fae. SI III ondocinccscchigacnincbnsnmsnstonicinnsahietnanns 16
i ohare nO OTR ISU ETNA REN i8
Fc aes 19
RECORD OF DECISION
AIRPORT LAYOUT PLAN
CHICAGO O’HARE INTERNATIONAL AIRPORT
fact winise ert pie irwed ai é iy
A-74
RECORD OF DECISION
AIRPORT LAYOUT PLAN
CHICAGO O’HARE INTERNATIONAL AIRPORT
CHICAGO, ILLINOIS
1. Proposed Action
The proposed Federal action consists of the approval of an
Airport Layout Plan submitted by the City of Chicago, Depart-
ment of Aviation, for Chicago O’Hare International Airport.
11. Introduction and Background
Chicago O’Hare International Airport is the world’s busiest
airport and a vital part of the nation’s transportation system as
well as of the Chicago Metropolitan Area.
The City of Chicago conducted a Master Plan Study for
O’Hare Airport that was financed in part with Federal funds in
four (4) separate grants issued under the Airport and Airway
Development Act of 1970 (P.L. 91-258) and its amendments.
As part of that Study, an Airport Layout Plan was developed
which shows the existing and proposed facilities that the City of
Chicago considers to be necessary for the operation and
continued development of the airport. Also, as a part of that
Study, an Environmental Assessment was prepared for the
proposed development. :
The proposed development plan originally was separated
into three phases. Phase | encompassed the initial devel-
opment that was to begin in the 1982-83 time period, Phase II
included development occurring from 1983 to 1987, and Phase
III included development to be done after 1987. The Phase I
development was assessed separately and a Finding of No
Significant Impact was approved July 22, 1982, for the Federal
action of approving an Interim Airport Layout Plan. The
Interim Airport Layout Plan was approved July 30, 1982. The
major Phase I development items are: new terminal and
A-75
concourse for Delta Airlines, bay expansion in Terminals 2 and
3, relocated flight kitchens and airport maintenance facility,
and an inter-terminal people mover system. Phases II and III
were subsequently combined into a single phase. The
Environmental Assessment that was prepared covered the
cumulative impacts associated with the Phase I development
and the combined Phases II and Iil.
On April 9, 1984, the City of Chicago submitted its
completed Airport Layout Plan to the Federal Aviation Admin-
istration (FAA) for approval. The FAA prepared a Final
Environmental Impact Statement (FEIS) for the proposed
development and approved it on May 31, 1984.
An aeronautical study of the Airport Layout Plan was
conducted by the FAA, including circularization to the public
from May 15, 1984 to June 15, 1984. No objections were
received as a result of the circular. Based on that study, the
Airport Layout Plan was determined to be acceptable from an
airspace utilization standpoint.
Approval of the Airport Layout Plan does not represent
approval as far as necessity for the development is concerned
nor is it a commitment of Federal funds for any future
development. It signifies a concurrence for planning purposes
based on review of conformance with current standards for
safety, utility, and efficiency.
Ill. Issue
The question of whether O’Hare Airport needs to expand
and improve its facilities has been under study for some time. It
is a question which involves matters of public policy in terms of
social, economic, and environmental issues. It is a question on
which there has been some disagreement expressed, both
substantively and in terms of the weight which should be given
to each of these factors.
A-76
The issue is whether to approve the Airport Layout Plan
submitted by the City of Chicago. Approval of it would allow
the City to proceed with implementing the proposed devel-
opment at the airport and to request Federal funds for eligible
items of development. Not approving it would prevent the City
from proceeding with the development in a timely manner.
Generally, Section 2(b)(1) of the Department of Trans-
portation Act of 1966, charges the Secretary of Transportation
with the responsibility “to assure the coordinated, effective
administration of the transportation programs of the Federal
Government, to facilitate the development and improvement of
coordinated transportation service... and to provide general
leadership in the identification and solution of transportation
problems.” More specifically, under the Federal Aviation Act of
1958, as amended by the Department of Transportation Act of
1966 which transferred aviation policy function and duties to
the Secretary, the Secretary is responsible for the “promotion,
encouragement, and development of civil aeronautics” and
fostering “the development of civil aeronautics and air com-
merce in the United States”, and giving “full consideration to
the requirements. .. of commercial and general aviation”.
In the Airport and Airway Improvement Act of 1982,
Congress declared that “the continuation of airport and airway
improvement programs and more effective management and
utilization of the Nation’s airport and airway system are
required to meet current and projected growth of aviation and
the requirements of interstate commerce, the Postal Service,
and the national defense.”
IV. Policy Consideraticns
All grant agreements with the City of Chicago for O’Hare
Airport under the Airport and Airway Development Act of
1970 and the Airport and Airway Improvement Act of 1982
include the following assurance by the City of Chicago:
De NOR TE Re TT ee aA ee
ee
Pe peer Oe OL | Pee eee ae rn oe ee ey
ee 7,
A-77
Airport Layout Plan. It will keep up to date at all times an
airport layout plan of the airport showing (1) boundaries
of the airport and all proposed additions thereto, together
with the boundaries of all offsite areas owned or controlled
by the sponsor for airport purposes and proposed additions
thereto; (2) the location and nature of all existing and
proposed airport facilities and structures (such as runways,
taxiways, aprons, terminal buildings, hangars and roads),
including all proposed extensions and reductions of exist-
ing airport facilities; and (3) the location of all existing
and proposed nonaviation areas and of all existing im-
provements thereon. Such airport layout plan and each
amendment, revision, or modification thereof, shall be
subject to the approval of the Secretary which approval
shall be evidenced by the signature of a duly authorized
representative of the Secretary on the face of the airport
layout plan. The sponsor will not make or permit any
changes or alterations in the airport or in any of its
facilities other than in conformity with the airport layout
plan as so approved by the Secretary if such changes or
alterations might adversely affect the safety, utility, or
efficiency of the airport.
FAA Order 5050.4, Airport Environmental Handbook,
prescribes that approval of an airport layout plan is a Federal
action subject to the National Environmental Policy Act of
1969 for which an environmental assessment must be prepared
and processed.
;*,. ite et te pe ab Mem ley
In the Consent Decree entered October 14, 1982 in State of
i Illinois v. Butterfield, et al, the City of Chicago agreed to
present the entire Master Plan development for O’Hare Airport
to the FAA as a single, comprehensive submission and the FAA
agreed to process an EIS with respect to the submitted devel-
opment.
A-78
The FEIS assessed the overall development program and
the cumulative impacts associated with it. In this regard, it is
the policy of the Department of Transportation to reduce
adverse impacts on the quality of the human environment
which result from transportation decisions. This is consistent
with our responsibilities under the National Enviromental
Policy Act of 1969 “to use all practicable means and measures,
including financial and technical assistance, in a manner calcu-
lated to foster and promote the general welfare, to create and
maintain conditions under which man and nature can exist in
productive harmony, and fulfill social, economic, and other
requirements of present and future generations of Americans”.
Section 1505.2(b) of the Regulations for Implementing the
Procedural Provisions of the National Environmental , Policy
Act issued by the Council on Environmental Quality states that
a record of decision shall identify all alternatives considered by
the agency in reaching its decision. The proposed development,
as depicted on the ALP, includes a great many interrelated
projects. Due to the complex and interrelated nature of the
development projects, this Record of Decision specifically
identifies all alternatives to the development as a whole.
.owever, rather than identifying each of the alternatives to
specific projects within the overall development, this Record of
Decision hereby specifically incorporates by reference each of
those alternatives considered in the FEIS into this document.
Each of those alternatives has been fully considered even
though not individually identified. It is believed that this
method is in keepig with the requirements of CEQ 1505.2(b) as
well as Section 1505.2 which provides that the Record of
Decision shall be concise.
V. Alternatives to Proposed Development Program
The FEIS considered the following alternatives to the
proposed development program:
A-79
a. Alternative Modes of Travel. Alternative modes
such as rail, bus, and automobile cannot satisfy the needs
of the majority of travelers who take trips of more than 250
miles from the Chicago area and are not acceptable
substitutes for efficiency provided by air travel.
b. Utilization of Other Airports. The only other
airport that currently provides commercial air carrier ser-
vice to the Chicago Metropolitan Area is Midway Airport
which is being improved to accommodate a limited in-
crease in service to selected cities, but cannot be adequately
expanded to handle the increased demand and needs of
the Chicago Metropolitan Area. The Greater Rockford
Airport and General Mitchell Field in Milwaukee are too
distant for most Chicago area travelers and are not suitable
alternatives.
c. Development of New Airport. Development of a
new major air carrier airport was considered several times
in the past, as well as in the recently completed Master
Plan Sutdy. This alternative was not selected because of
difficulties in finding a suitable site, the extremely high
costs of acquisition and development of a new site, and the
long lead time to make it operational. Development of
another air carrier airport to serve the Chicago Metropoli-
tan Area will be studied again as part of a State System
Plan to be prepared by the Illinois Department of Trans-
portation under a series of grants to be funded by the
FAA’s Airport Improvement Program. The initial grant
was issued in September 1984.
d. Alternative Levels of Aviation Demand. The
expansion plans for O’Hare Airport were prepared after a
selection was made by the City of Chicago from six (6)
demand alternatives which ~re discussed in the FEIS.
They considered constrained and unconstrained levels of
aviation demand, and included alternative roles to be
played by O’Hare and Midway Airports. The City of
VL
A-80
Chicago decided to pursue a constrained development for
O’Hare Airport that would limit the future growth to that
which could be handled by the existing runways and
available land and by assuming improved air traffic contro!
capabilities to accommodate increased operations.
e. Do Nothing. Under this alternative, there would be
no additional or expanded facilities at O’Hare Airport.
This alternative was rejected because it would result in a
reduction of effective gate capacity due to use of more
wide-body aircraft and an increase in aircraft operational
delays. Also, it would fail to correct existing deficiencies in
congestion of aircraft, automobiles, and passengers. In
addition, under this alternative, which the FEIS refers to as
“Without Project”, the future noise and air pollution would
be greater than the “With Project”.
Proposed Development
The environmentally preferable alternative is the proposed
overall development program as shown on the ALP and as
assessed in the FEIS. The program is comprised of many
individual projects, each of which had alternatives. As men-
tioned above under Policy Considerations, the projects and
alternatives were too numerous to be included herein. All of
them, which are incorporated herein by reference were consid-
ered in this Record of Decision. The selected major on-airport
projects are described below:
a. Central Core Facility. The alternative selected for
domestic air carrier terminal and gate facilities was to
develop them in the existing central core area of the
airport. It will include constructing new Terminal | and
concourse, apron expansion, concourse extensions, taxiway
relocations, service road relocation, commuter concourse
relocation, terminal access road modifications, and taxicab
staging area relocation. This concept will keep the domes-
tic carrier facilities together and permit maximum use of
the central core area.
ee
A-81
b. International Terminal Facility. The existing
inadequate international terminal will be displaced by the
new Terminal | and concourse mentioned above. Facil-
ities to accommodate international carriers and travelers
must be located on the airport. The existing cargo area
was the selected alternative for the site of the new inter-
national carrier facility. In addition to a terminal building,
it will include aircraft parking apron, taxiway connectors,
auto parking, and access road. This location will facilitate
passenger connections with the domestic carriers.
c. General Aviation Facility. The existing general
aviation facility will also be displaced by the new Terminal
| and concourse. The alternative selected was to develop a
new general aviation facility east of the relocated commu-
ter facility, which will be east of the new international
terminal complex.
d. Cargo Complex. The need for new and expanded
cargo facilities will be met by the selected alternative of
developing a cargo complex in the southwest part of the
airport. It will consist of cargo/freight forwarding build-
ings, aircraft parking ramps, taxiway connectors, and
access roadways for connectors to the central core and to
Irving Park Road.
e. People-Mover System. Completion of the people-
mover system covered in the Phase I Environmental
Assessment was the alternative selected to move the pas-
sengers between the various terminals as well as the
remote parking lots. The system will consist of an inter-
terminal shuttle segment and links to future terminais and
remote parking lots.
f. Runways and Taxiways.
(1) Runway 9L/27R extension and associated
taxiways—To provide additional flexibility in oper-
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ational capability of the airfield, the alternative se-
lected was to add 550 feet at the east end of Runway
9L/27R and 790 feet at the west end.
(2) Partial parallel and exit taxiways for
Runways 9R/27L and 14R/32L—To provide aircraft
access to the future cargo complex, the alternative
selected was to add partial parallel taxiways on the
cargo area side of Runways 9R/27L and 14R/32L
and exit taxiways for Runways 9R/27L and !4R/32L.
(3) Runway I4R/32L extension—To reduce
wake turbulence interference with aircraft departing
from Runway 27L, the alternative selected was to
extend Runway 14R/32L by 1400 feet to the south-
east. This would allow heavy aircraft landing on
Runway 32L to touch down before the intersection
with Runway 9R/27L.
(4) Runway 14R/32L partial dual parallel taxi-
way—To provide additional flexibility for the ground
movement of aircraft, the alternative selected was a
new partial parallel taxiway east of the existing paral-
lel taxiway for Runway 14R/32L.
(5) Taxiway connection to Runways 32L and
4R—To facilitate the movement of aircraft to and
from the new cargo complex, the alternative selected
was to construct taxiways between the cargo complex
and the southeast end of Runway 14R/32L and the
hold pad at the southwest end of the parallel taxiway
for Runway 4R/22L.
(6) Aircraft hold pads—Other development will
cause the displacement of the existing penalty box
alongside the parallel taxiway for Runway 14R/32L
and the hold pad at the southeast end of Runway
14L/32R. The alternative selected to replace them
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was to construct two new hold pads, which are needed
to hold arriving aircraft that have to wait for a
terminal gate to become avai able.
(7) Additional taxiway bridge—A second tax-
iway access is needed between the eastern portions of
the terminal complex and the east end of the north
airfield side. The alternative selected was to construct
a second taxiway bridge over the airport entrance
road.
g. Ground Access.
(1) Northwest Tollway Access—The alternative
selected to relieve traffic congestion on the primary
airport entrance road was to provide the Northwest
Tollway with a new eastbound exit and a new west-
bound entrance at the north side of the airport.
(2) Old Mannheim Road—To handle the in-
creased traffic due to the proposed Northwest Tollway
access, the alternative selected was to upgrade Old
Mannheim Road.
(3) Zemke Road—To facilitate traffic flow be-
tween Mannheim Road and Old Mannheim Road, the
alternative selected was to relocate Zemke Road,
which currently connects them, to intersect the two
roads south of the existing intersections.
(4) Southeast Service Site Access and Service
Road— Access is needed between the new Southeast
Service Site and the main airport service road for
vehicles traveling to and from the flight kitchens and
airport maintenance complex. The alternative se-
lected was to provide an on-airport road connection to
the main service road and an access from off-airport.
(5) Western Access—To provide access to the
airport from the west, the alternative selected was a
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roadway connection at York Road plus a remote
parking lot and a people-mover system. The access is
conceptual only at this time and will be modified to
show planned alignments, Thorndale Avenue exten-
sion, etc., when those plans are prepared in the future.
The Illinois Department of Transportation indicates
an Environmenta! Impact Statement will be prepared
prior to selection of the final alignment. it will
consider the impacts associated with airport related
traffic for each alignment.
h. Parking Facilities.
(1) East Remote Site—A new parking lot on the
east and west sides of old Mannheim Road was the
alternative selected to provide additional long-term
parking. It will be convenient to the new Northwest
Tollway access and to the new people-mover system.
(2) Rent-A-Car—The alternative selected for
additional rent-a-car facilities was to expand the exist-
ing rent-a-car parking and staging areas.
(3) North Remote Parking—To provide addi-
tional long-term parking in the post-1990 time period,
the alternative selected was to construct a parking lot
in the northern portion of the airport adjacent to the
proposed Northwest Tollway access.
i. U. S. Post Office. The new International Terminal
Facility will cause displacement of the U.S. Post Office
facility. The alternative selected was to build a new facility
at a site south of the proposed new cargo complex.
j. Heating and Refrigeration Plant. To satisfy the
increased capacity requirement for heating and cooling the
central core facilities, the alternative selected was to ex-
pand the existing Heating and Refrigeration Plant.
ated, a he ak
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k. Crash, Fire and Rescue (CFR) Facility. Reloca-
tion of the inner/outer taxiway system will cause dis-
placement of the main CFR station. The alternative
selected was to build a new station in the northeast corner
of the cargo complex.
|. Military Facilities. A proposed land exchange
between the City of Chicago and U’S. Air Force to provide
land for a remote parking lot will involve replacement of
some military facilities. The alternative selected was to
replace the facilities on land at the airport that is already
owned by the U. S. Air Force and land that will be deeded
to it by the City of Chicago.
VIL. Affected Environment
O’Hare Airp
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