Amicus Curiae Brief — Delta Air Lines, Inc. v. Port Authority

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5) FILED

No. 87-333 MAR 29 1988

In the Supreme Court of the GniterTs .

OCTOBER TERM, 1987

DELTA AIR LINES, INC., PETITIONER

PORT AUTHORITY OF NEW YORK AND NEW JERSEY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

CHARLES FRIED

Solicitor General

ROGER J. MARZULLA

Acting Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

CHRISTOPHER J. WRIGHT

Assistant to the Solicitor General

PETER R. STEENLAND, JR.

RAYMOND B. LUDWISZEWSKI

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

are ei oe

QUESTION PRESENTED

Whether the Port Authority of New York and New

Jersey, which operates three major airports in the New

York City area, may limit the distance of flights into and

out of one of those airports under the “proprietary

powers” reserved to it by 49 U.S.C. App. 1305(b)(1).

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TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

British Airways Board v. Port Authority, 558 F.2d 75 |

TR Oe OS ne ae re 8

City of Burbank vy. Lockheed Air Terminal, Inc., 411 U.S.

ie dees aasses 3, 8

City of Houston y. FAA, 679.F.2d 1184 (Sth Cir. 1982)... 3, 4

Griggs v. Allegheny County, 369 U.S. 84 (1962) ......... 8

Midway Airlines vy. County of Westchester, 584 F. Supp.

ane 6

Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292

ER OS eS oe 5

San Diego Unified Port District v. ietewte 651 F.2d

1306 (9th Cir. 1981), cert. denied, 455 U.S. 1000

Ce a wba vacbesuvens 8, 10

Southwest Airlines, Automatic Market Entry, 83 C.A.B.

EORTC “at 7

Statutes:

Airline Deregulation Act of 1978, Pub. L. No. 95- 504, 92

i a eu ea eee 5

EN OE ee 5

et MON ony aig visly a s-ace a oh es aes Me 4,7

I ce wes sawn p Age 2

a6. Fie

A Ee 3, 4, 6,

7, & 2.

Aviation Safety and Noise Abatement Act of 1979, Pub.

Se cc wun dbucseclaeBewes 8

Metropolitan Washington Airports Act of 1986, Pub. L.

No. 99-591, § 6012, 100 Stat. 3341-388 .............. 10

Noise Control Act of 1972, Pub. L. No. 92-574, 86 Stat.

a cc a BE BW oa es 8

Pies SU PU. © S88" So. 8 CO FOES) OS... l

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Regulations: Page

N.Y. Unconsol. Law § 6631 (McKinney 1979) ..........

eae BRE Se i & : : ree ee re TS rg ty 2

Miscellaneous:

124 Cong. Rec. (1978):

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0 Folk, Tie. SEIGE CRUD anos v5 sc cece coiiawcsssyneess

H.R. Conf. Rep. 95-1779, 95th Cong., 2d Sess. (1978) ...

H.R. Rep. 95-1211, 95th Cong., 2d Sess. (1978) .........

S. Rep. 95-631, 95th Cong., 2d Sess. (1978) ............

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Ccowowrnrvovwre

Jn the Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-333

DELTA AIR LINES, INC., PETITIONER

PORT AUTHORITY OF NEW YORK AND NEw JERSEY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is filed in response to the Court’s invitation to

the Solicitor General to express the views of the United

States.

STATEMENT

The Port Authority of New York and New Jersey,

which functions pursuant to an interstate compact be-

tween the two states, operates the three major commercial

airports serving the New York City area, Kennedy Interna-

tional Airport, Newark International Airport, and

LaGuardia Airport. The Port Authority is required to

operate these airports as a unified system. N.J. Stat. Ann.

§ 32:1-35.1 (West 1963); N.Y. Unconsol. Law § 6631

(McKinney 1979). Since the 1950’s, the Port Authority has

had a “perimeter rule” in effect at LaGuardia, the smallest

of the three airports. Until 1984, the perimeter rule was in-

formal and prohibited non-stop flights into or out of

(1)

LaGuardia to or from points more than 2,000 miles from

the airport. In 1984, following a study, the Port Authority

instituted a formal 1,500-mile perimeter rule but “grand-

fathered” service to Denver, which is more than 1,600

miles from LaGuardia. Pet. App. 2a, 14a. The Port

Authority “believes that business travelers create con-

siderably less airport congestion than vacationers” and in-

Stituted the perimeter rule “to encourage the use of

LaGuardia by business people, who often make relatively

short trips, and the use of Newark and Kennedy for vaca-

tion flights” (id. at 20a).

In March 1986, petitioner! obtained several “slots” at

LaGuardia through a lottery conducted pursuant to

regulations promulgated by the Federal Aviation Ad-

ministration (FAA).? Petitioner, which has operated be-

tween Kennedy and its hub at Salt Lake City International

Airport for a number of years, sought permission from the

Port Authority to operate non-stop commercial flights be-

tween LaGuardia and Salt Lake City. Since Salt Lake City

is nearly 2,000 miles from LaGuardia, the Port Authority

denied permission, relying On its perimeter rule. Pet. App.

la-3a.

Petitioner then instituted this action, alleging that the

Port Authority’s perimeter rule is contrary to 49 U.S.C.

App. 1305(a)(1), which provides that no state or interstate

agency may enforce any rule “relating to rates, routes, or

services Of any air carrier.” The district court concluded

' This case was initially brought by Western Air Lines, Inc. In 1987,

Western merged into Delta Air Lines, Inc.

2 The FAA restricts the number of flights into and out of four

“High Density Traffic Airports,” including LaGuardia, through the

use of slots. Each slot authorizes the airline to perform one take-off or

landing at the airport during a designated half-hour period. See 14

C.F.R. 93.211-93.227.

that the rule “may be fairly characterized as a regulation

touching this area” (Pet. App. 7a). However, the court

concluded that the Port Authority’s perimeter rule is a

valid exercise of its proprietary powers under 49 U.S.C.

App. 1305(b)(1), which provides that nothing in Section

1305(a)(1) shall be construed to limit the right of any state

or interstate agency that owns and operates an airport “to

exercise its proprietary powers and rights.” With respect to

the meaning of Section 1305(b)(1), the district court first

noted that in City of Burbank v. Lockheed Air Terminal,

Inc., 411 U.S. 624 (1973), this Court struck down a

municipal ordinance that imposed a curfew on jet traffic

at a privately-owned airport. The Court held that the or-

dinance, which was designed to limit aircraft noise, was

preempted by federal aircraft noise regulations, but noted

that it was not deciding “what limits, if any, apply to a

municipality as a proprietor” of an airport (ic’. at 635-636

n.14). The district court then rejected petitioner’s argu-

ment that Congress intended Section 1305(0)(1) to allow

airport proprietors to regulate airport noise only, explain-

ing that “Section 1305(b)(1) does not expressly limit pro-

prietary powers to the regulation of noise, although

presumably Congress would have so limited the section if

that is what it had in mind” (Pet. App. 9a). The district

court concluded that a “proprietor’s interest in regulating

ground congestion at its airports would appear to be at the

core of proprietor’s function as airport manager, perhaps

even more so than the regulation of noise; and the ability

of a proprietor such as the Port Authority to allocate air

traffic in its three airport system is important to the ad-

vancement of this interest” (id. at 10a).

The court also noted that in City of Houston v. FAA,

679 F.2d 1184 (Sth Cir. 1982), the court upheld the

perimeter rule at Washington National Airport. While

Section 1305 did not apply in that case because the FAA

(not a state or local agency) operated National at that

time, the court in City of Houston recognized that the

FAA justified its perimeter rule as an exercise of its pro-

prietary right, as the owner of National and Dulles Inter-

national Airport, to manage congestion problems at Na-

tional (679 F.2d at 1193-1194). The district court here

stated that “as in City of Houston, there is in issue a multi-

airport system. The effect of the perimeter rule in each

case is to divert air traffic from one airpert to another

within the respective systems, not to close down

metropolitan area runways to all air traffic to or from

points outside the perimeter.” Pet. App. lla. The district

court held that the perimeter rule, “as imposed by the Port

Authority to manage congestion in a multi-airport system,

* * * fits comfortably within the limited role{] which Con-

gress has reserved to the local proprietor” in Section

1305(b)(1) (Pet. App. 12a).3

The court of appeals affirmed “on the basis of” the

district court’s opinion (Pet. App. 27a). It specifically

Stated that it agreed with the district court’s conclusion

that a perimeter rule, “at least when enacted by a multi-

airport proprietor such as the Authority, falls within the

3 The district court also rejected the claim that the Port Authority’s

perimeter rule unreasonably discriminates agairst petitioner (Pet.

App. 12a-17a). While the reasonableness of the rule to achieve its

Stated justification may be questionable since non-stop flights are per-

mitted from LaGuardia to Bermuda, Nassau, and West Palm Beach

even though the stated justification for the rule is that the Port

Authority wants business travelers (and not vacation travelers) to use

LaGuardia, petitioner has not raised that claim in its petition for a

writ of certiorari (see Reply Br. 3 n.4). Accordingly, this case presents

no occasion for this Court to consider the reasonableness of the Port

Authority’s perimeter rule, a fact-bound issue that would not warrant

this Court’s attention in any event.

~~ -_ >. —

proprietary powers of airport operators exempted from

preemption by section 1305(b)(1)” (ibid.).

ARGUMENT

Both lower courts correctly concluded that the Port

Authority, as the proprietor of three major airports serv-

ing One metropolitan area, is not preempted from impos-

ing a perimeter rule at one of its airports. Since the deci-

sion below creates no conflict in the courts of appeals and

there are very few multiple-airport proprietors, further

_review by this Court is not warranted.

1. It has long been the case, in the regulation of com-

mercial aviation, that “[fJederal control is intensive and

exclusive” (Northwest Airlines, Inc. v. Minnesota, 322

U.S. 292, 303 (1944) (Jackson, J., concurring)), so that

most local regulation is preempted by the pervasive federal

presence. That was not changed by the Airline Deregula-

tion Act of 1978, Pub. L. No. 95-504, 92 Stat. 1705. While

Congress worked a fundamental change in federal regula-

tion of the airline industry by abolishing the Civil

Aeronautics Board and placing “maximum reliance on

competitive market forces” (49 U.S.C. App. 1302(a)(4)), it

enacted Section 1305(a)(1) as part of the Airline Deregula-

tion Act of 1978 to prevent local regulation from filling

the regulatory vacuum it created. See S. Rep. 95-631, 95th

Cong., 2d Sess. 98-100 (1978); H.R. Rep. 95-1211, 95th

Cong., 2d Sess. 15-16 (1978).

Petitioner contends (Pet. 12), as the district court con-

cluded (Pet. App. 7a), that the Port Authority’s perimeter

rule relates directly to petitioner’s “routes” since it bars air-

craft leaving LaGuardia from flying directly to any point

(except Denver) more than 1,500 miles from LaGuardia.

The Port Authority suggests (Br. in Opp. 12-13 n.9) that

“route[]” is properly defined from a city-to-cily perspec-

tive rather than an airport-to-airport perspective. Under

its construction of Section 1305(a)(1), the perimeter rule is

not preempted because it does not affect service between

Salt Lake City and New York City, but, rather, affects

service between the Salt Lake City International Airport

and LaGuardia Airport. Neither construction of the word

“routes” is unreasonable, and the legislative history pro-

vides no guidance in determining precisely what Congress

meant. Accordingly, it is not clear, under Section

1305(a)(1) alone, whether imposition of a perimeter rule

by a multiple-airport proprietor is preempted.

Whether or not the Port Authority’s perimeter rule

relates to “routes” within the meaning of Section

1305(a)(1), it is properly viewed, in the context of a

multiple-airport system, as an exercise of a proprietory

power protected from preemption by Section 1305(b)(1).

As the district court concluded (Pet. App. 10a), regulation

of airport congestion “would appear to be at the core of

the proprietor’s function as airport manager.” Accord

Midway Airlines v. County of Westchester, 584 F. Supp.

436 (S.D.N.Y. 1984). Reasonable steps taken to relieve

congestion are therefore within the scope of the powers

preserved by Section 1305(b)(1). In a multiple-airport con-

text, imposing restrictions that reduce congestion at a busy

airport in order to encourage use of a less crowded airport

inay be a reasonable way to relieve congestion. When the

FAA operated National and Dulles airports, it imposed a

1,000-mile perimeter rule at National to minimize conges-

tion there and to stimulate growth at Dulles, and justified

its rule as an exercise of its proprietary powers. The FAA

stated that it had “long recognized that an airport pro-

prietor with control of two or more airports serving the

same area can take reasonable actions to determine the

nature of service provided’at one airport so long as the

proprietor’s other airports remains available to accom-

modate fully the other types of operations.” 46 Fed. Reg.

36076 (1981).4

2. Petitioner primarily argues that the courts below

erred because Congress, in enacting Section 1305(b)(1), in-

tended that the proprietary powers protected from

preemption would be strictly limited to regulations

relating to noise or other potential sources of direct finan-

cial liability for the airport operator. Because “[t]he Port

Authority makes no argument that it could be liable for

allowing long-distance non-stop flights into LaGuardia”

(Reply Br. 5), petitioner contends that the perimeter rule is

beyond the Authority’s proprietary powers.’ Congress

4 While petitioner notes (Reply Br. 1-2, 8a) that some FAA officials

have questioned whether perimeter rules ought to be authorized, even

in cases involving multiple-airport proprietors, the decision below

does not conflict with any official action ever taken by the FAA. Nor

is petitioner correct in contending (Pet. 15-16) that the CAB, in

Southwest Airlines, Automatic Market Entry, 83 C.A.B. 644 (1979),

construed Section 1305 inconsistently with the decision here. In that

case, the CAB, during the period in which it was being phased out and

deregulation was being phased in, concluded that specific statutory

provisions governing the interim period required it to issue a cer-

tificate authorizing Southwest Airlines to fly between Love Field in

Dallas and New Orleans. In its brief discussion of Section 1305(b)(1),

the CAB concluded that that general provision did not give an airport

operator “veto power” over a certificate issued by the CAB pursuant

to the mandatory terms of the statute (83 C.A.B. at 651-652).

5 Petitioner also argues (Pet. i Question 3; Pet. 17) that, in addition

to being preempted by Section 1305(a)(1), the Port Authority’s

perimeter rule is invalid on account of the FAA’s slot system (see note

2, supra). There is no merit to that contention, which petitioner does

not press. The slot system, which is designed to promote more effi-

cient use Of navigable air space by limiting the number of flights arriv-

ing and departing al certain airports during certain hours (see 50 Fed.

Reg. 52181 (1985)), does not relate to the distance of flights to or from

the airports and therefore does not conflict with the perimeter rule.

did not draft Section 1305(b)(1) in a way that suggests that

it intended it to be limited as petitioner proposes. If it had

intended merely to allow airport owners to take steps to

avoid liability, particularly liability resulting from aircraft

noise, then, rather than broadly preserving “proprietary

powers and rights” from preemption, Congress pre-

sumably would have drafted the provision more narrowly

than it did. Moreover, it seems clear that Congress did not

intend such a narrow construction. For example, parking

restrictions might affect the routes airlines fly since an

airline might decide not to fly to popular vacation spots

from a particular airport that lacked inexpensive long-

term parking. But Congress plainly did not intend to

preempt proprietors from regulating airport parking, even

though no liability attaches to proprietors on account of

parking regulations.°®

Nothing in the legislative history of the Airline

Deregulation Act suggests that Congress, in preserving

proprietary rights and powers, had in mind the narrow

meaning petitioner suggests. Indeed, the legislative

history, like the words of the statute, supports a contrary

conclusion. The provision preserving proprietary powers

6 The adoption of noise restrictions by airport proprietors raises ad-

ditional legal questions. Unlike other exercises of proprietary powers,

local noise regulation must not only survive preemption under Section

1305(a)(1), but also must avoid running afoul of the comprehensive

federal scheme of aircraft noise regulation found in the Noise Control

Act of 1972, Pub. L. No. 92-574, 86 Stat. 1234, and the Aviation Safe-

ty and Noise Abatement Act of 1979, Pub. L. No. 96-193, 94 Stat. 50.

An airport operator’s ability to regulate noise has been understood to

be grounded upon the need to mitigate its potential financial liability

under Griggs v. Allegheny County, 369 U.S. 84 (1962). San Diego

Unified Port District v. Gianturco, 651 F.2d 1306, 1317 (9th Cir.

1981), cert. denied, 455 U.S. 1000 (1982); British Airways Board v.

Port Authority, 558 F.2d 75, 83 (2d Cir. 1977); cf. City of Burbank,

411 U.S. at 633, 635-636 n.14.

was in the House bill but not in the Senate bill.” Following

action by the Conference Committee, which included the

proprietary powers provision in the bill it produced (H.R.

Conf. Rep. 95-1779, 95th Cong., 2d Sess. 4 (1978)),

members of each house engaged in a colloquy in which the

questioner asked whether the bill would affect the “long

recognized powers of the airport operators to deal with

noise and other environmental problems at the local

level.” 124 Cong. Rec. 37419 (1978) (statement of Sen.

Kennedy); id. at 38526 (statement of Rep. Markey).

Senator Cannon responded that “[i]t was not the intent of

the Senate conferees to limit in any way the normal exer-

cise of the existing proprietors’ powers to place non-

discriminatory restrictions on the operations at an airport”

(id. at 37419-37420). Similarly, Representative Anderson

stated that “[i]t was not the intent of the House conferees

to limit in any way the normal exercise of a proprietor’s

powers to determine the level and nature of service to be

provided at airports” (id. at 38526). These statements,

while not focused on the precise question presented here,

are contrary to the narrow construction of Section

1305(b)(1) proposed by petitioner. Neither spokesman for

the conferees suggested that the provision authorized noise

regulation only or otherwise indicated an understanding

? While the Senate bill did not include an express provision pre-

serving proprietary powers in its preemption provision (S. Rep.

95-631, supra, at 39-40), the Senate Report stated that the prohibition

against “regulations that affect routes, rates, fares, or charges should

not be construed to affect or limit existing proprietary rights of airport

operators tO manage, Operate, or regulate airports” (id. at 99). The

House bill contained an express proprietary powers provision (H.R.

Rep. 95-1211, supra, at 40), although the House Report did not com-

ment on it (/d. at 15-16).

that it had the limited effect of permitting only regulations

that are designed to avoid liability. ®

3. In any event, review is not warranted because the

decision below, which is expressly limited to cases in-

volving “a multi-airport proprietor such as the Authority”

(Pet. App. 27a), involves a question of extremely limited

applicability. In addition to New York City, only Los

Angeles (Los Angeles International Airport and Ontario

Airport), Houston (Houston Intercontinental and Hobby

Airport), Chicago (Midway Airport and O’Hare Interna-

tional Airport), and Washington (National and Dulles) are

served by multiple-airport proprietors. Washington is not

affected by the question presented here because Congress,

in transferring authority over National and Dulles from

the FAA to a local agency, imposed a 1,250-mile perimeter

rule on National. Metropolitan Washington Airports Act

of 1986, Pub. L. No. 99-591, § 6012, 100 Stat. 3341-388.9

§ Contrary to petitioner’s contention (Pet. 11-12), the decision here

does not conflict with the statement in San Diego Unified Port District

v. Gianturco, 651 F.2d 1306, 1317 (9th Cir. 1981), cert. denied, 455

U.S. 1000 (1982), that before an entity may regulate air[port] noise “it

must bear the responsibility, either actual or potential, for excessive

aircraft noise.” That statement is addressed to the legally distinct con-

text of aircraft noise regulation, which, as we have noted (note 6,

supra), is pervasively regulated by the federal government. Moreover,

that case did not involve a multiple-airport proprietor and the court

did not even cite Section 1305(b)(1).

9 Petitioner errs in suggesting (Pet. 14-15 n.20) that Congress’s im-

position of a perimeter rule at National Airport indicates its

understanding that the proprietor could not adopt such a rule. In the

absence of congressional action, the proprietor might or might not

have imposed a perimeter rule, or might have imposed a different rule.

Congress’s action shows that it wanted to be sure that a 1,250-mile

perimeter rule would be in effect at National. It further suggests, con-

trary to petitioner, that Congress does not perceive perimeter rules, in

the context of multiple-airport operators, to be contrary to the scheme

it has established to govern the nation’s air service.

The physical limitations of Houston Hobby and Chicago

Midway — neither of which would be capable of handling

long-range, non-stop flights unless existing runways are

lengthened into densely populated areas — make the adop-

tion of formal perimeter rules there highly unlikely. Since

there is no indication that any other proprietor is likely to

impose a perimeter rule, this decision is unlikely to have

any significant impact upon the national air transporta-

tion system.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

MARCH 1988