Appellants Brief — Burbank v. Lockheed Air Terminal, Inc.
Supreme Court brief1973
Ask Donna
What actually matters in this document.
Text
. Violation of Fifth, Ninth and Tenth Amend-
. Griggs v. Allegheny County
a Posture of the Federal Aviation Administra-
National Uniformity
The Burbank Ordinance Is Not Preempted ..
The Conflict Issue
Runway Preference Order :
Interference With Federally Certificated .
Rights
Interference With Use of the Navigable Air-
‘Need for Single Authority
Violation of Fifth, Ninth and Tenth Amend-
ment Rights
. Griggs v. Allegheny County ...
The Solution |
Relief at the Federal Level
Interim Measures
_ Injunctive Relief Through the Courts
Reversal of Griggs v. pee: County -.
ioe Scarce Foes Senate Report No. 1353,
90th: Congress, Second Session ------APP Pp.
_ Excerpt From 34 Federal Register 18355-18356
Nov. 18, 1969 ._....
Inthe Mater of th ein of Foran A Drei 4
iii.
TABLE OF AUTHORITIES CITED
2
rt
i Cases Page
Aaron y. City of Los Angeles, 11 Avi. 17, 642
(Cal. Super. Ct. 1970) . 78
Air Transport Association of America, et al. v. City
“of Inglewood, et al. (No. 71-1153-CC) __. 31
Allegheny Airlines Inc. v. Cedarhurst, 238 F. 2d
812 (2d Cir. 1956) ide 33
American Airlines Inc. v. Audubon Park, 297 F.
* Supp. 207 (W.D.Ky. 1968), affd per curiam,
407 F. 2d 1306 (6th Cir. 1969), cert. denied,
"396 US. 845 (1969) 33
American Airlines, Inc. v. Hempstead, 272 F.
Supp. 226 (E.D.N.Y. 1967), affd 398 F.2d
¢ 369 (2d Cir. 1968), cert. denied, 393 U.S. 1017
_ (1969) 33
Batten v. United States, 306 F. 2d 580 (1962)
_ ett. denied, 371 U.S. 955 (1963), rehear. den.,
- 372 US. 925 (1963) 78
Bell v. Burson, 402 U.S. 535 (1971) 68
Bibb y. Navajo Freight Lines Inc, 359 US. 520
~ (1959) - 58
Boyd v. City of Sierra Madre, 41 Cal. App. 520,
183 Pac. 230 (1919) 37
Airways v. Nebraska State Board, 347
S. 590 (1945) 33, 34
Recta 62
hood of Locomotive Engineers v. Chicago
ck Island & Pacific Railroad Co., 382 US.
(1966) 81
dod of Railroad Trainmen v. Jacksonville -
inal Co., 394 U.S. 369 (1969) 83
iv.
California v. Taylor, 353 U.S, 553 (1957) 81
California v. Zook, 336 U.S, 725 (1949) 37
Calvert Cliffs’ Coordinating Committee, Inc. v.
Atomic Energy Commission, 449 F. 2d 1109
(D.C. Cir. 1970) 75
Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402 (1971) 75
City of Detroit v. Murray Corporation of America,
355 U.S. 489 (1958) 2
Colorado Anti-Discrimination Com. v. Continental
Adar Lines, Inc., 372 U.S. 714 (1963) ......44, 46, 82
Dreifus, In re) FAA Regulatory Docket No. 9071
(7/10/69) 6, 28, 41, 45, 52, 53, 55
Dutton v. Evans, 400 U.S. 74 (1970)
Buclid v, Ambler Realty Co., 272 U.S. 356 (1926)... 57
Friends of Mammoth v. Board of Supervisors of
Mono County, Nov. 6, 1972, Sacramento 7924 .. 75
Fuentes v. Shevin, 407 U.S. 67 (1972)
Gibbons v, Ogden, 9 Wheat. 1 (1824)
71
U.S. 424 (1963) _
wessoeesnnseoneeensess . 35, 36, 46, 63, 82
Huron Portland Cement Co. v. Detroit, 362 US.
. 330 (1960) -... 34, 47, 62,°81, 82 -
Interstate Busses Corp. v. Holyoke Street R. Co. |
273 US. 45 (1927) . .
¥.
3
3h
+o.
ae
4
>
BSA
we
Page
‘Local 24 International Brotherhood of Teamsters v.
© Oliver, 358 U.S. 283 (1959) 81
Loma Portal Civic Club v. American Airlines, Inc.,
~ 61 Cal.2d 582, 39 Cal.Rptr. 708, 394 P.2d
548 (1964) 28, 35, 36, 50, 56, 77
Martin v. Port of Seattle, 64 Wash. 2d 309, 391
P. 2d 40 (1964), cert. denied, 379 U.S. 989
» (1965) 78
Napier v. Atlantic Coast Line Railroad Co., 272
US. 605 (1926) 82
Nestle’v. City of Santa Monica, 6 Cal. 3d 920, 101
Cal, Rptr. 568, 496 P. 2d 480 (1972) .......... 67, 68
New Jersey v. New York, 283 U.S. 336 (1931) .... 75
Northern States Power Company v. State of Minne-
£ sota, 447 F. 2d 1143 (1971) 84
‘Olmstead v. United States, 277 U.S. 438 (1928) .... 69
Perez v. Campbell, 402 U.S. 637 (1971) ............ 50, 58
Port of New York Authority v. Eastern Airlines,
259 F. Supp. 142 (1966) 14
Rice v. Board of Trade, 331 U.S. 247 (1947) ..48, 49
Rice v. Santa Fe Elevator Corp., 331 U.S. 218
(1947) 36, 48, 64
peas
‘Sniadach v. Family Finance Corporation, 395 U.S.
“337 (1969) 68
‘South Carolina State Highway Dept. v. Barnwell
‘)Bros., 303 U.S. 177 (1938) 65
i ig aan Co. v. Arizona, 325 U.S. 761
58
Stag y. Municipal Court of Santa Monica Judicial
+) District, 2 Cal.App.3d 318, 82 Cal.Rptr. 578
(9969) 32, 41
vi
aa Page
Terminal Reilsoad Ass’n‘of St. Louis v.:Brotherhood —
of Railroad Trainmen, 318 US. 1°(1943) ...81, 82
Thain-¥. City’ of Palo‘ Alto, 207.:Cal. pp. 20.278, i
24 Cal. Rowe 15 (1962) | 57
-y. Port of rented 233 Ore. 178, 376
Pi 2d 100, (1962) -. 78
Thornburg v. Port of Portland, 244 Ore. 69, 415 P.
'2d-750 (1966) = 78
Toviiship ‘of Hiinover v: Town of Morristown, 108
‘NE tal #64, 261 Atl. Rptr. 2d:'692 (1969)
oiiui.32, 60, 77, 78
Udall ¥y, Federal Power Commission, 387 U: = 428
. (1967). 75
Liatandut@be:- Pigs: ine, Co. v. Ideal Cement ‘Co,
52369. U.S. 134 (1962) 2
United States (Federal Aviation Administration) v.
«City of Inglewood, et al. (No. 71-1632-CC) ..
Virginians for,.Dulles v. Volpe, ats F, Supp. —
(1972) set pani 32,55
Watson Vi Employers. Liability Assurance Corp.,
: 348 US, 66. (1954)
2 cs 3 __ Miscellaneous
Aviation Week ion Technology, Nov. 6; 1972,
op. 19. : 32, 71
Aviation tek: &Gyche: Technology, Nov. 6, 1972,
Op. 27.
Califofnia’ Department of Public Health, A Repost
“* to, the. 1971 Legislature on the Subject of Noise —
_ Pursuas sto, Assembly » Copourrent Rendiation z
Edy 19TO: CAOTAY -1-s---1,2--18- iB
Cleat Air. ‘Amendments of. 1970,. PL No. Of608
_ (December 31, 1970) ( {
Vii.
Page
118 Congressional Record (daily ed. Feb. 29,
1972) No. 29; p. H 1509 22
118 Congressional Record (daily ed. Feb. 29,
1972) No. 29, pp. H 1510, H 1518, H 1534,
23
118 Congressional Record (daily ed. Feb. 29,
1972) No. 29, pp. H 1512,-H 1515-16, H 1519,
‘H 1520 26
118 Congressional Record (daily ed. Feb. 29,
1972) No. 29, pp. H 1523, H 1530, H1531 .... 27
118 Congressional Record (daily ed. Feb. 29,
1972) No. 29, p. ‘H 1534 55
118 Congressional Record (daily ed. February 29,
1972) No. 29, p. H 1538 30
118 Congressional Record (daily ed. Oct. 18, 1972)
~ No. 169, pp. S 18638-S 18643 86
Evansville-Vanderburgh Airport Authority a
_ Of Delta Airlines, Inc., 405 U.S. 707 (3972)...
BE 61, es
House of Representatives Bill No. 11021, 92nd
, Cong., 2d Sess. 22, 86
ST he Stine of tc Sucecems Satan
Court of Massachusetts, 271 NE 2d 354 (1971)
ie pe 31
‘Panel on Noise Abatement, Dept. of
4 The Noise Around Us (1970), p. 2 .............. 23
“Benate Bill No, 3342, March 14, 1972 .....__ 22
ie Bill 3755, 92nd Cong., 2d Sess. .............. 80
i Report No. 1353, 90th Cong, 2d Sess.
8), pp. 6-7 6, 28, 40
bas ae
Report} No. WOR” 703 (RY), 9A ssn...
Pablication
Burbank Daily Review (Ota a2, 1972). .. 78
¥
Birbank Muni Code,- Sec. 20-32.1 ae
California’ Public Resources Code, Sec. 21000 _... 75
California Public Resources Code, Sec. 21151 ... 76
Califotnia Public Utilities Code, Sec. ara )
City. of Burbank Ordinance No. 2216
Code of Federal Regulations, Title 14, Part.36 ..
Come Fogees Regulations, Title 14, Sec. 36.5 .. F
SSE 28, 29, 40
Code ‘of Federal Regulations, Title 14, ‘Sec. “91. =
87; Part 91 .
Céde of FFéderal Regulations, Tite 14, See.'91.87
“(dy
Godenel Radstht Reghlatins; ‘Pise'14, ‘Sec. 91.87 ©
(3 cannes
Federal Aviation Act of 1958, Sec. 101(24) .
Federal “Aviation ‘Act ‘of 1958, Sec. 104 30 596, Cn
Federal--Aviation “Act-of 1958; Sec.°202(b)(2) ..
Federal: Aviation Act of 1958, Sec. 401. -...
Federal Aviation ‘Act of 1958, Sec."401 (i) \.14, 54
eiga ausn ted ie Sec. 611 215,20
-éated—ine>-—bifat 22n..40; 48,51
ation. ‘Act of 1958, Sec. G42 iscsi
: i viatic "At 858, Ss 1106
_ Federal, Aviation Act,of 1958, ‘Sec. 139A{6).. a
e-3 Se
Se se
ix:
Federal Aviation Act of 1958, Sec. 1374(b) _. 44
Noise: Control. Act of 1972, Sec. 17(c)(2) i... 86
Noise Control Act of 1972, Sec. 18(c)(2) 86
199 Statutes at Large, Ch. 313, 486. 37
“48 Statutes-at Large, p. 1064 ..... siseccincss 3S
49 Statutes at Latge, Ch. 945, p. 1491 BES 48
‘States Code, Title 20, Sec 1531 56
United States Code, Title 28, Sec. 1254(2) .......... 2
States Code, Title 28, Sec. 1331... 7
United. States Code, Title 28, Sec. 1337 ........ 7
United States Code, Title 42, Sec. 1857 ............56, 85
United States Code, Title 42/ Sec. 1857f-6a(b) .... 85
ilited States Code, Title 42, Sec. 1857611. 80
United States Code, Title 42, Sec. 4321 56, 74
United States Code, Title 42, Secs 4371-4374 ___ *
United States Code, Title 42, Sec. 4371(b)(2) ...
‘Waited States Code, Title 42, Secs. 4372-4374 6
tanker Steen nat 35
| Code, Title 49, Sec. 1102 ievteoeee 67
oe Title 49, Sec. 1301 .....16, 34
States Code, 38, 43, 71
States Code, Title 49, Sec. 1304 veinnses56, 71
ec ‘ound Code, Title 49, Sec. 1350... 14
fd States Code, Title 49, Sec..1371 53
Code, Title 49, Sec. 1371(i) . .14, 54
& Code, Title 49, Sec. 1431 15, 22, 40
48; 51
United States Code, Title 49, Sec. 1432
Untiited States Code, Title 49, Sec. 1506 -...........
United States Code, Title 49, Sec. 1701
et a eee
Duids
United States Constitotion, Art. I, Sec. 8, Cl. 11-14
7,
United States Constitution, Art. VI, Cl. 2 .
8
3
5, 4, 8
United ‘States Constitution, Fourth Amendment .... 69
United States Constitution, Fifth Amendment
19, 66, 67, 69, 70
United States Constitution, Ninth Amendment . 4
ie Si. IBS 26;:21, 66, 70, 87
United States Constitution, Tenth Amendment
19, 20, 21, 66,: 70, 87
United States Constitution, Fourteenth Amendment.
7, 8, 68
st Textbooks )
Beckman, The Right. to a Decent Environment
“Under the Ninth Amendment, 46 Los Angeles »
- Bar Bulletin 415 (Sept. 1971) 70
Berger, | Nobody ‘Loves an ‘Airport, 43 So.Cal_L.R.
~ 631° (1970); p. 724 27
Berger, Nobody Loves An Airport, 43 So.CalL.R.
%:1631. (1970), pp. 771-774 29
Berges, Nobody Loves An Aipor, 43 SoCal LC |
is 6
es ceede eaieun “=
1ePinees Ace Fiving: 4 Urban. Lawyer: 1/ (1972) ..
*,
im Page
Branch and Beland, Outdoor Noise and the Metro-
politan Environment—Case Study of Los An-
geles with Special Reference to Aircraft, 1970
(Library of Congress Catalog Card No. 72-
126027 ; 73
Branch and Beland, Outdoor Noise and the Metro-
politan Environment—Case Study of Los Angeles
_ with Special Reference to Aircraft, 1970 (Library
of Congress Catalog Card No. 72-126027 ), p.
21 waz BD
Fadem & Berger, A Noisy Airport Is a Damned
Nuisance! 3 Southwestern Univ.L.R. 39 (1970)
27
34 Federal Register, Nov. 18, 1969, pp. 18355-
18356 6, 15, 40
35 Federal Register 16,980 (Nov. 4, 1970) .... 30
Hildebrand, Noise Pollution: An Introduction to
the Problem and an Outline for Future Legal
2 Research, 70 Colum. L.Rev. 652 —
Kanner, Some of My Best Friends Use Airports,
12 California Trial Lawyers Journal, Spring,
1972, No. 2, pp. 61-87 >.
‘Lesser, The Aircraft Noise Problem: Federal Power
_ But Local Liability, 3 Urban Lawyer 175 (1971)
27
rs
Le
72
#sser, The Airport Noise Problem: Federal Power
* Sut Local Liability, 3 Urban Lawyer 175 at p.
204 (1971) 29
h, Are There Certain Rights . . . Retained
the People? 37 N.Y.U. L.Rev. 786 (1962) .... 70
An Environmental Lawyer Urges: Plead
he Ninth Amendment, Natural History, 26
ig.-Sept. 1970) 70
‘Supreme Court of the United States
October Term, 1972
No, 71-1637
ANDREWS, Chief of Police of the City of Burbank,
LOCKHEED AIR TERMINAL, INC, a corporatica, PACIFIC
SOUTHWEST AIR LINES, a corporation, and AIR TRANS.
PORT ASSOCIATION OF AMERICA,
hee A
ps On Appeal From the United States Court of Appeals
? for the Ninth Circuit.
BRIEF OF THE APPELLANTS.
———
Opinion of the United States Court of Appeals
‘Ninth Circuit is reported in 457 F. 2d 667
included in the Appendix (A. 410). The opinion
United States District Court for the Central Dis-
California is reported in 318 F. Supp. 914
lt included in the Appendix (A. 341).
se, a
JURISDICTION.
The *judgment..of the’ United States Court of Ap
peals was entered on March 22, 1972 (A. 5, 428).
Notice of Appeal to this Court was filed with the
Clerk of the United States Court of Appeals for the
Ninth Circuit on May 15, 1972 (A. 5). The Jurisdic
tional Statement was filed with the Clerk of this Court
on: June 17,1972. This Court noted probable juris
diction’ on October 10, 1972. Since this is an appeal
froma judgment of the United States Court of Ap
peals which held invalid an ordinance of the City of
Burbank, as repugnant to the Supremacy Clause of
the Constitution of the United States (Art. VI, Clause
2), the jurisdiction of this Court rests on 28 U.S.C.
§1254(2). The following “decisions sustain the juris
diction of this Court to review the judgment in this
case on appeal: United Gas Pipe Line Co. v. Ideal
Cement Co., 369 U.S. 134, 135 (1962); City of De
troit vy. Murray Corporation of. America, 355 U.S. 489,
492 (1958); Watson v. Employers Liability Assurance
Corp., 348 U.S. 66, 70.(1954); Dutton v. Evans, 40
9 74,77 C1990).
ORDINANCE INVOLVED: —
The ordinance involved in this case is Ordinance
No. 2216 of the City-of:Burbank passed and adopted
on March 31, 1970, which added Section 20-3211
to the. Burbank Municipal Code providing as follow
he 378):. ba a
“Sec, 20-32.1. Aircraft Take-Otfs. :
ma) "Put ets Prohibited from Taking Off ©
Between 11:00 P.M. mt 0 AM
ee
® «o°Sit shall be unlawful for any person at the con-
trols of a pure jet aircraft to take off from the
‘Hollywood-Burbank Airport .between 11:00 P.M.
ui Lea 00 AM, Se mest day
1 *(b) "Airport Operator Prohibited from Allow-
ing Take-Offs.
voi At, Shall _be unlawful for the operator of the
Hollywood-Burbank Airport to allow a pure jet
j=, Siteraft to take off from said airport . between
ee _ 11:00 P.M. of one day and 7:00 A.M. the next
pe, i ie
Play Saceptiiar: Eesarpincies.
“This Section shall not apply to flights of. an
_ emergency nature if the City’s Police Department
4 is contacted and the approval of the Watch Com-
re mander on duty is obtained before take-off.”
CONSTITUTIONAL PROVISIONS INVOLVED. -
The. provisions of the Constitution of. the United
he aaa teaaRt
" (1) The Supremacy Clause (Art. VI, Clause 2)
which provides:
“This Constitution, and the Laws of the United
Fe alte made in Pursuance there-
ot; and all Treaties made, or which shall be
made, under the Authority. of the United States,
Sched be, fo. gupeeme, Lay of, the Land: and the
ce Fades. in very State. shall be bound thereby,
‘i ll ac a ila aia
sal tien
(2): The Commerce Clause» wees I, Section 8
Clause 3),-which provides:
(“Phe Congress shall have power . . .”]
“To regulate Commerce with foreign Nations,
“'/ and: athong ‘the several States, ‘and' with the Indian
Tribes;”
3) That portion of the Fifth Acieiidcoent: Wilh
(a le iif ary potson] Wo dope ot
liberty, or property, without due process of lav;
nor shall private property be taken for public ws
without just compensation.”
: * (4) The Ninth Amendment which provides:
ie “The enumeration in the Constitution, of cer
tain rights, shall not be construed to deny or dit
parage others retained by the people.”
(5) ‘The Tenth Amendment which provides:
xa “The powers not delegated to the United States
by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, of
to the people.”
The questions presto review are as follows
(A. 55,342):
(1) Whether the ‘Federal government has so pt
empted thé fields of regulation of the use of aif spac
doormat ele ert
‘ili
(2) Whether the ordinance is in conflict with Fed-
eral statutes or Federal regulations and is rendered
void and unenforceable by the Supremacy Clause (Ar
“(3) Whether enforcement of the ordinance would
result in an intolerable and unreasonable burden on
interstate commerce in violation of the Commerce
Clause (Article I, Section 8,'Clause 3).
(4) Whether the ordinance constitutes an attempted
fegulation of a phase of the national commerce which,
becausé of the need of national uniformity, demands
that regulation, if any, be prescribed by a single au-
thority.
“In the terms and circumstances of the case the
question presented for review is whether the City of
Burbank is powerless to restrict departures of pure jet
“titeraft ‘from’ Hollywood-Burbank Airport, a privately
owned and operated airport within its boundaries, be-
fween the hours of 11:00 p.m. and 7:00 a.m. under the
© €@) To accommod late jet ‘aircraft the private ai
Hoprietor’ (Lockheed Air Terminal, Inc.) has extended
fhe “2irpo runways to the maximum limits of its
at low a'titudes over. adjacent residences, with resulfant
Gist vance of the occupants of such residences, par-
Sasi
minations in the hands of individual airport proprie
tors.’ etiye ite ‘
(c) Airport proprietors, without violating any Fed.
eral statute or regulation, may exclude any airctaft
om Sie <hasie; seh: nalee nopeiderations, 02 SORE A+ ay
exclusion is nondiscriminatory.*
6d): The ‘FAA Chlétof: the Algport: Trattic Ci
trol Tower at the Hollywood-Burbank Airport has reo
ognized the seriousness of the noise problem in the
vicinity of. the airport and the steps taken by him t
reduce this problem were ineffective (A. 317, 319).
(e) The Federal Aviation Administrator, under sim-
ilar circumstances, has declared that nondiscrintine
tory time limitations may be an effective and appro
priate means of adapting aircraft noise to the needs of
local. communities. and that such form of locally r
sponsive noise control is clearly in the national inter
est.*
. (f) The only regularly scheduled flight affected by
the ordinance was in intrastate flight of an intrastate
air carrier (Pacific Southwest Air Lines) departing st
11;30 p.m. each Sunday (A. 394). The other flights
peek: ee mnreety -depereres: coment ee.
aircraft (A. 395).
(
:|
"434 Federal Register 18355-18356, Nov. 18, 1969; now 14
“Append
The in the
tie ea tom set out
ee3|
i
dated June 22, 1968
the on. Interstate
inet He
SE
See also
; In re}
Te.
a
at
ia
Be 7
sa. (\) -sSYATEMENT OF THE CASE.
ere 2 1. Nature of the Case.
SEE SN
iic:* (hereinafter referred to as “Lockheed”), a Del
wire corporation, as owner and operator of the Hol-
ank Airport, and by Pacific Southwest
‘Air Lines (hereinafter referred to as “PSA"), an intra-
state air carrier” incorporated under the laws of the
State of California, against the City of Burbank (here-
inafter referred to as “Burbank”) and certain ‘of its
Officers, seeking declaratory and injunctive relief with
8, Clauses 11-14) and the Supremacy
eta | VET Ciaing 2) OP the Chanthantion°ot te
‘States (A. 15). The District Court's jurisdiction
p invoked ‘under 28 U.S.C. $1331 and 28 U.S.C.
1337 (A. 7).
"Air ‘Transport Association of America (hereinafter
=a Abel enna eal
1 h of scheduled interstate air carriers,‘ was sub-
seque ity permitted to file a complaint in intervention
fexing the same relief but only alleging that the or-
fir fe violated the Commerce Clause (Art. I, Sec. §,
of. the stock of Lockheed Air Terminal, Inc. is. owned
~ Aircraft Corporation (A. 99,438).
ee PSA is not
ie i e
or es
Clause 3), and the Supremacy Clause (Art. VI, Claus
2) of the United States. Constitution (A. 27, 34).
Lockheed and PSA subsequently abandoned any
contention that the ordinance violated the Due Proces
Clause (XIV Amendment) or the War Powers Clauses
(Ast. I, Sec, 8, Clauses 11-14) of the United States
Constitution (A. 55),.and withdrew these issues from
the District Court’s consideration (A. 66-67).
-_ 2. Course of Proceedings and Disposition.
The. original complaint herein was filed on May
14, 1970 (A. .2) together with an application for a
temporary restraining order and an order to show
cause why.a preliminary injunction against the enforce.
ment: of the ordinance pending trial should not issue
[R.,421}. The application was, granted and the hearing
on the preliminary injunction was held on May 2),
1970: [R. 421]. At the request of Lockheed the tem
porary restraining order was dissolved and the hearing
on the order to show cause placed off calendar as
Lockheed. [R. 421]. Pursuant to stipulation betwees
PSA and the defendants, the temporary restraining or
der was continued in effect so as to permit PSA 00 -
continue its 11:30 p.m. Sunday night flight from Hol
lywood-Burbank Airport until July 12, 1970, and
PSA. withdrew its application fora preliminary ®
junction [A. 83-84; R. 421]. As a result the ordinane
became effective again on July 13, 1970 and contit
ued in effect until November 30, 1970.
The trial took place on September 15, 16"aad M7
1970 (A. 3). On November 30, 1970 the finding
of fact, conclusions of law and’ judgment were signed
and. filed and the judgment entered (A. 4). The jule
wile:
thent of the District Court declared the ordinance un-
constitutional, illegal and void and ‘enjoined its en-
forcement (A. 408). In reaching this conclusion the
District’ Court held the ordinance to be repugnant to
the Supremacy Clause (preemption and conflict) and
to'the Commerce Clause (A. 405).
- The Court of Appeals, in deciding the case, limited
itself to the issue whether the’ ordinance was repugnant
tothe Supremacy Clause in two aspects, namely, (1)
preemption and (2) conflict (A. 414). While there
was unanimity on the conflict issue and affirmance of
the judgment of the District Court, one of the three
judges refused to concur in that portion of the opinion
which dealt with the preemption issue (A. 427).
ie ; 3. Relevant Facts.
we Hollywood-Burbank Airport.
+ Hollywood-Burbank Airport is located in a thickly
populated area (A. 373, 393) and entirely within the
Gity of Burbank except approximately 2,050 feet of
the northernmost portion of its “North-South” runway
e. t lie in the City of Los Angeles (A. 380-381).
“North-South” runway is the preferential runway
ke-off (from north to south), not only because of
ler length (approximately 6,900 feet), but also
_ Because of its southerly slope and the fact that the pre-
tailing wind is generally from the south (A. 157-159).
ft taking off to the south over-fly a residential
hin the City of Burbank from one-third to
Seenalf mile distant (A. 336). Hollywood-Burbank
Aiport also has an “East-West” runway (A. 381)
: foximately 6,000 feet in length (Agi 56). Aircraft
fing to the east on this runway over-fly a resi-
al area within the City of Burbank somewhat closer
ver
—10—
craft: departing to the west over-fly that portion of the
City..of. Los..Angeles. known as North Hollywood (A —
74)...The-FAA: Departure Charts for Hollywood-Bur
bank Airport [PI. Ex. 7, A..452-453, 103] specify mis
imum climb rates for departing aircraft varying from
260 feet to 347 feet per nautical mile.
None of the runways-at Hollywood-Burbank Airport
can tabieusaiiainsiin tian dot eicensteciath, 0045
707. and the DC-8 (A. 141).-They are generally sut-
ficient’ to accommodate the smaller jet aircraft such
as. the.727, the. DC-9 and the 737. (A. 142). Lok
heed... achieved ..the runway lengths indicated by. e-
tending these runways to the limits of the property
which it owns or controls [Pl. Ex. 2, A. 428-429, 98].
Hollywood-Burbank Airport is used by United Air
Lines, Western, ‘Air West ‘and Pacific Southwest Air
(LAX) when landing there is precluded by weathe
conditions (A. 170).
United Air Lines, “Western, Air West, Continent
‘Ait ‘Lines and Pacific Southwest Air Lines also utilie
“tat Sa ahi pew als cet
craft. taking off or landing at, Hollywood-Burbank Air
port dates dates ‘from about 1965 when jet aircraft began
using the airport on a regular basis (A. 142). The fint
"Thess havo been instances when sit cartier have tad
ab ts None oe
to
Gfficiat recognition of the adverse environmental effects
ef-this “jet aircraft traffic was in the latter part of
1967- when the FAA Chief of the Airport Traffic Con-
procedures. for take-offs and landings in an attem
reduce noise complaints (A. 112). These proce-
yes. were modified several times, the last of which
lated September 4, 1969) provided, on a non-man-
datory ‘basis, that Runway 25 (take-offs to the west
On the “East-West” runway) should be used as much
a8 po for departures of turbine powered aircraft
“during the period from 2300 to 0700 when people are
‘tileep (Pl, Ex. 30, A. 453, 113]. The only discernible
lect of this procedure was an increase in i
by people living west of the airport (A. 317). The
fumber of complaints from south of the airport re-
ned about the same (A. 319).
‘¥@n-March 31, 1970 the City Council of the City
Burbank duly and regularly adopted Ordinance No.
d) -which added Section 20-32.1 to the Burbank
Municipal Code to provide as set forth above. It be.
effective on May 4, 1970. (A. 378). Its pro-
ms ‘were two-fold, one making it unlawful for
lot of a pure jet aircraft to take off from the
wood-Burbank Airport between 11:00 p.m. of one
7:00 a.m. the next day, and the other making
ful for the operator of the Hollywood-Burbank
(Lockheed Air Terminal, Inc.) to allow a pure
reraft to take off from the airport during such
Beds, Flights of an emergency nature were excepted.
‘Be to the effective date of this ordinance, Mr. Da-
vid M.
pn ie i a
flights of ‘in emergency nataté which would: justify’s
jet ‘departure during ‘the’ hours proscribed [Def. Bx
A, AS 518, 1797 ‘and by’ letter dated May 1, 197%
(Det! Bx: A-1, A. 520, 180], Mr. Simmons was aj
vised by the City Attorney that the list of emergeng
conditions appeared reasonable and would be used by
the Police Department. at least for the time being. He
also-advised. that.a 6:40 a.m. charter flight by Lock
heed-California specialists ‘to Palmdale’ each working
daly had ‘been’ cleared ‘as an emergency flight. Amida
thie other departures: authorized as‘ emergency flight
were aircraft scheduled for departure prior to 2300
which had been delayed by mechanical problems, weatt
er or air traffic control procedures; aircraft which had
to land because of ‘emergency conditions; and aircraft
—13—
“The ‘only other flights affected by the ordinance
Were ‘principally departures (at least three per week)
Of corporate jet aitcraft (A. 395).
Ba dens Federal Regulation.
"Lockheed, as the proprietor and operator of the
ywood-Burbank Airport, is not subject to Federal
gonomic. or other regulation, except in terms of the
safety. of its operation.’ It establishes its own sched-
ile Of rates and charges for the use of the airport by
air carriers and other aircraft, and such schedule is not
¢t to approval of: the Civil Aeronautics Board, the
Federal Aviation Administration or any other govern-
mental agency or body (A. 170). Lockheed’s consent
must be obtained for use of its airport by an air car-
er even though a Certificate of Public Convenience
and Necessity issued by the Civil Aeronautics Board
ecifies that airport as one of the points on the route
SMSection 612 (49 U.S.C. §1432), which was added to the
mal Aviation Act of 1958 in 1970, became effective on
—14—
[Pl Ex, 35. at.p: 43,.A.:118].". As matter of
policy, Lockheed supports route applications before the
Civil Aeronautics Board or the California Public Uti,
ties Commission which would entail the use of it
facilities, ‘to demonstrate ‘that it is in full accord (A
147), and has had’ no occasion to do otherwise be
cause the’ aitport has had: excess capacity for a mum
ber ‘Of ‘years (A. 168). In addition, Lockheed my
exchide’ any aircfaft’on the basis of noise and impor
operational ‘regulations’ on the airlines: using the air
port’ (A!'171-172), including a restriction on runway
wee and ‘hours of operation." It may substantially re
conse t siport or ler the runway layout wit
FAA ‘approval? Bet
| In sharp contrast to the foregoing and as to thor
‘S¢additionally, subsection (i) of ogg ae (49 je
eerie ie eseky' eed’ orth
P Convenience and reo
set forth at length in the Findings of Fact of the Dis-
ret’ Court (A. 375).
“| Ka tothe control and abatement of aircraft noise,
Sction“611 (49 U.S.C. §1431) of the Federal Avia
tion Act of 1958 requires and empowers the Federal
Aviation Administrator to “prescribe and amend such
tules' and regulations as he nfay find necessary to pro-
vide for the control and abatement of aircraft noise.”
nerd under this authority, the Administrator has
adopted regulations prescribing noise standards for
all new subsonic turbojet-powered aircraft (34 Federal
Register 18355-18356, Nov. 18, 1969, now published
at 14. CFR. Part 36). However, in doing so, he stated
that “The noise limits specified . . . are not intended to
substitute federally detebinaied noise levels for those
hore restrictive limits determined to be necessary by
2 airport proprietors in response to the lo-
~ally determined desire for quiet and the locally de-
prmined need for the benefits of air commerce”, and
‘ “that the Federal Aviation Administration makes
to ion, under Part 36, on the acceptability
of te eee AY Wet shyt
areonmen 2
~ Se 5m ition, the Federal Aviation hidestaleiepss has
operational regulations which require tur-
2 d fixed wing aircraft to maintain an alti-
_—onhesirertermem ten
farther descent is required for a safe landing,
my D to 1,500 feet as rapidly as practicable,
ing off (14 CFR. §91.87(d), (£)).
» Z
ae
The toliviving iva-simamty olstbecteinciga: poly
paneer
if ih
|
tae
Hil ti
“The Federal sicts relating to air commerce and the
exercise of Federal commerce power do not preveat
action ‘or regulation ‘is designed to protect the health
set forth and the contentions made in the Argument t
State action consistent with that power where the State
*
ational uniformity
desirable nor. pos-
: himself has
vernments may regulate in this area, This
further held that State or local governmental
ated enterprise has freedom to act. In this
action necessary to exclude aircraft on the
9t noise considerations. Accordingly, the City of
RK had the power to require Lockheed to exer-
is discretion in the manner as set forth in the
—18-—
against the Appellants by concluding that the Burbank
ordinance “stands as an obstacle to accomplishment
and execution of the full purposes and objectives o
Congress.” The conflict ‘which it found was with re
spect to a non-mandatory runway preference order of
a minor FAA official in charge of the Air Traffic
Control Tower at Hollywood-Burbank Airport. It viewed
the non-mandatory runway preference order as a &
termination by the FAA that no further steps could
properly be taken to alleviate the noise pollution result
ing from operations at the Hollywood-Burbank Airport.
This so-called “determination” was itself in conflict with
other determinations made by the Federal Aviation A¢
ministrator. The only weight that can be properly a
corded to the FAA Tower Chief's determination is that
of all noise abatement runway procedures he had a
tempted, this last one had the best prospects of achieving
the greatest noise reduction. As to the effect of the Bur
bank ordinance on! the 11:30 p.m. PSA Sunday night
flight, the convenience of the persons departing on tha!
flight as well as the convenience of those who wish to
need of. thousands of persons who reside in the vicinity
‘Of the Hollywood-Burbank Airport for uninterrupted
sleep. As to the Certificates of Public Convenience am
Necessity issued by the Civil Aeronautics Board, gid
certificates confer no right to utilize a particular aitpat
—19—
eee: ah ‘Burden on Interstate Commerce,
There is no evidence in this case that the Burbank
ordinance imposed or would impose any burden on
interstate commerce. The evidence introduced in this
case to demonstrate the effect the Burbank ordinance
would have if it were applied to all major airports
throughout the United States: is purely an attempt to
loud the issue. The extent to which air commerce re.
quites a single authority in control is a legislative ques-
lion,” ‘not & judicial question. Up to the present time
Congress has not seen fit to place airports utilized by
ftir under the contol of any Federal roca
Tt oe |
‘airport proprietors are not subject to Federal eco-
Momic or other regulation except in the area of ‘airport
‘ af .
: some . degree to. preserve Fifth Amendment rights
pect ble body of opinion that the right to a
Avironment is one of the rights retained by the
people under the Ninth and Tenth Amendments, anj
that action which leads to the destruction of the emi
ronment may be restrained or limited.
6. Griggs v. Allegheny County. :
Griggs v. Allegheny County, 369 U.S. 84 (1962),
and the decisions of the Court of Appeals and th
District Court in this case cannot stand together. If th
decision in this case is allowed to stand without reversal
of Griggs, then the Federal Aviation Administration
will be able to continue its questionable course of con
duct without interference, and the Federal governmeat
and the airlines will remain shielded from liability for
their actions or non-action.
7. The Solution.
There can be no question that interim measures,
such as the Burbank ordinance, are morally, socially
and. environmentally necessary. The preemption am
conflict doctrines of this Court mark out a sufficient
area in which interim measures, such as the Burbank
ordinance, can fit, without violation of the Supremacy _
Clause of the United States Constitution.
Should Griggs be reversed so that Federal government
and the airlines would become liable for the “taking” of
air or noise easements, and, more importantly, should
prospect that the airlines and the Federal Aviation A¢
ministration would then be able to prevail on Congres
to declare a preemption of this field. If such should
“
3
:
1. The Problem.
We are before this Court because there is no other
place to go for relief. Legislation before Congress,
which held some promise of future relief from jet air
craft noise ‘by transferring the Federal Aviation Aé
ministrator’s powers under Section 611 (14 USC
§1431) of the Federal Aviation Act of 1958 to the Aé
ministrator of the Environmental Protection Agency
(Senate Bill No. 3342 introduced March 14, 1972),
failed to survive under the combined assault of the air
lines and the Federal Aviation Administration.
Noise Pollution.
The effect and extent of noise pollution in this cour
try, as revealed during the course of Congressional de
bate on this bill and a companion bill in the House of
Representatives (H.R. 11021) are frightening. Accord
ing to an Environmental Protection Agency report,
noise appears to affect to a measurable degree of im
pact at least 80 million persons, or approximately 40%
of the present population of the United States. 0!
that number, at least one-half are believed to be risking”
potential health hazards, hearing impairment in partic
ular, as the result of long enduring exposure Wt
noise." The effect is psychological, physiological and
sociological. There is proof that many people in ou
mental institutions have been put there as a result of
excessive noise and irritation caused by noise, Noix
affects the body physically and can cause different dis
eases. As many as 44 million persons in the Uniled
18118 Cong. Rec. (daily ed. Feb. 29, 1972) No. 29 ap
H 1509. | |
area, and the prospects for
have been the subject of a specific study.”
= reveals that in areas immediately surround:
‘id. at p. H 1510. |
iM te
ing airports, low-flying aircraft and those taking off,
taxiing and testing engines on the ground generate th
most intense and frequent noise in the city.” It further
reveals that the smaller jet aircraft of the type which
utilize the Hollywood-Burbank Airport produce an wa |!
acceptable level of noise (100 plus PNdb) over a
area approximately one mile in width and extending
from two to three miles from the end of the airport's
runways.” It further noted that noise levels in exces
of 87 PNdb cause substantial speech interference and
produce various temporary changes in the physiological
state. The most important of these is a reduction in th
size of the median and smaller arterials. Some of th
side effects of this phenomenon are an increase in
pulse rate, a paling of the mucous membrane
throughout the organism, and an increase in respiration
rate. In addition, rest and relaxation is interfered with
to a substantial degree. It is the conclusion of this study
that although apparently higher sound levels can bk
tolerated by man without permanent damage or break-
down from this cause alone, an urbanwide limit above
87 PNdb would be indefensible and irresponsible.”
As to aircraft noise specifically, it is stated that such
noise in excess of 82 PNdb impairs conversation and
reading outdoors, and generally disturbs concentration,
especially when aircraft over-flights are frequent and
the climate favors outdoor activity, and that aircraft
noise is psychologically more intrusive because of it
contrast with the usual sound level and its relatively
“sudden” occurrence.” | feb
*11d. at p. 8.
%3/d. at p. 21.
387d. at p. 40.
Jd. at p. 41.
iyo! Posture of the Federal Aviation Administration.
“'Tarning now to the posture and lack of effort on the
part “Of the Federal Aviation Administration with re-
pect to aircraft noise abatement, the statements of vari-
ous members of Congress in the course of the debates
on the bills ‘referred to above are particularly revealing
(these ‘statements were made in an unsuccessful at.
inpt to persuade the House’ of Representatives to shift
fircraft noise abatement authority from the Federal
‘Aviation Administrator to the Administrator of the En-
vironmental Protection Agency):
Cc Wydler:
at ai
__ “The problem is, however, although they [FAA]
if have competence they have shown to the Congress
"Of the United States and to the American people
a complete and utter lack of willingness to use the
| authority which we give them to set the limits on
» jet noise which they should be setting.
niet “In other words, Mr. Chairman, it is not enough
~~ to say that the FAA is competent to do the job.
Ps The question we have to answer in this House to.
+ day is whether the FAA intends to do the job and
___ intends to do anything to utilize the powers that
=e gave them or whether they intend to remain,
_ &8 they apparently have over the years, 2 very
- Willing partner of the airline industry in keeping
® «effective regulations from being put into effect.
“Mr. Chairman, if you will look at the record of
FAA in this field, you will see that what I am
y is a fair and just statement. The Congress
fee and a half years ago in 1968 passed a bill
“Which would have given and in fact did give the
AA ‘the power to take action in the area of re-
ducing jet noise for presently flying aircraft. Thor
are the aircraft making the noise and the aircraft
which will be.making the noise for the next deo
ade or 15 years. We gave to the FAA the powe
to reduce noise in those aircraft and set limit
_which could have meant that they would be retro
fitted with noise suppression devices to bring the
levels of noise down. For three and a half years the
FAA stalled us and the American people and has
taken the position that industry wanted them
take and done nothing.”*
Congressman Mikva:
“If the past is any guide, we are not likely
bring much relief to residents in the vicinity of our
airports by turning over to the FAA the power to
set noise standards for airplanes.”
Statements. of other Congressmen on this subject ar
found in the footnotes. These statements confim
26
7 li8. Cone. Ree Rec. (daily ed. Feb. 29, 1972) No. 29 at p
- 9d: et p. Hi 1517.
WILK Cogy Riek. : (dally 08.’ February '29, 1972) No. 2%:
nr ee
“Unfortunately history has ctan
Ye FAA to undertake a meaningful program of aircrali
, noise abatement.” “esta dnansataras
eee
health should not be
airlines.” (at p. H 1531)
feeeipe
secondary to the
aN
m Univ 39
Fadem &
Southwestern
“gt
—223—
this “no-action”. policy. of the Administrator is found
in his opinion in In the Matter of the Petition of Jordi
A. Dreifus,, FAA Regulatory. Docket. No. 9071, th
full:text.of which is set forth in-the Appendix to ti
Brief (p. 4).
“It is worthy of note: that at every opportunity the
Federal “Aviation Admitistration expressly . disclaim
that the noise standards. which it adopts are. acceptable
in any specific airport environment and following its
previous pattern declares that airport owners acting
proprietors can deny the use of their airports to aircraft
on the: basis: of noise considerations.” The net result
is that airport proprietors are not regulated in terms of
the. permissible level of noise which may be created by
aircraft using their airports. This attitude and approach
by. the. Federal Aviation Administration allows the Fed.
eral government to remain immune from liability for air-
craft; noise.under Griggs v. Allegheny County.” It al
permits the Federal Aviation Administration to pary
the-thrust of citizens’ ‘complaints by pointing to the air
port proprietor as the culprit. As a result we have
the “lacuna” about ‘which the California Supreme Court
warned in Loma Portal Civic Club v. American Air
Hines, Inc.™
Bivest im the one ares where the Federal Aviatio
Aeeiplecse bes sted—o sdoqton of noe sm
“91369 OR 84 (1962).
39 CabkRptr, 394 B
oti cus sg 78, 994, 2 “a ”
—29—
Pa for new subsonic turbojet-powered aircraft—his
‘actions again demonstrated a lack of concern for the
A had stated that it was “well within the state of
’ to achieve noise levels of 106 EPNdb (this is
‘fefinement of the PNdb concept which takes into ac-
it the duration of noise and pure tones such as the
whine“of a jet engine) measured at three statute miles
from the start of take-off, one statute mile from the
landing threshold, and 1,500 feet from the center-
Bet Go runway ” In spite of this, the standards
# actually promulgated permit noise levels of 108
EP) id ‘at points farther from the runway than origi-
nally proposed and levels as high as 110 EPNdb, if
: | greater reduction of sideline noise is achieved.
he difference between 106 EPNdb, as originally sug-
peated, ‘and 110 EPNdb represents a substantial in-
ly 50%. To make matters worse,
the Administrator exempted from these standards
‘the first group of approximately 160 Boeing 747’s.™
Other ‘exemptions will no doubt be forthcoming.
4 he _Administrator’s record with respect to existing
jet aircraft is equally unimpressive. In July of 1970 he
released a study prepared by Rohr Corporation” which
. = JD, Bat, Blatt, Associate Admsineicaon, PAA, to Wil-
ce Come Tey to PAA Ma
CFR. §36 §36
x, The laine Noise Problem: Federal Power ed
ia © eaptng pl tiling 204 (1971). See
rger, “ Nobody Loves An Airport, 43 So.CalL.R. 631
P pp. 771-774.
Report os soe ee by Rohr Corporation, dated
¢ Prepared) for Department of Transportation, Fed-
~~ (This is continued on next page)
—30—
reached. the conclusion. that the 727’s, the 737s al |
the DC-9's (the ‘largest type of jet: aircraft presently
in use at’ the Hollywood-Burbank Airport) could te
retrofitted to achieve reductions of 5 EPNdb in noi
levels on take-off and 10 EPNdb on landing, and
in the case of 707 and DC-8 jet aircratt, reduction
of 8 EPNdb on take-off and 13, EPNdb on landing
That these reductions would be substantial is borne out
by the fact that a reduction of 8 EPNdb on takeoff
noise of the 707 and DC-8 jet aircraft would drop th
annoyance level by 45% and a reduction of 13 EPNéb
would drop the annoyance level by some 60%." The
shady Sipther qdvises that the cost of retrofitting cl
be recovered through nominal fare increases.” Th
release of this report was followed in November of the
same year by the issuance of an FAA Advance Notice
noise: reduction ‘retrofit. requirements.” Although
hearings ‘have been held on this subject by the Fedetal
Aviation ‘Administrator, nothing ‘resulted, and in th
early part of ‘this year the Administrator postponed fur
deration of the mattet for 18 months."
Office of Eco-
Acoustically Treated Nacelle ad
Cottiguisions. Applicabte to Low Bypass Turbofan Es
"Supra, footnote 35.
**Supra, footnote 36. "
"9935 Federal Register 16,980 (Nov. 4, 1970).
wih SS ee a cde #
: 1968. 68 nuthorng the FAA to sc "aig Ht ad and elt
=~ A) “a
PO pe
oe ae
he equally distressing aspect of this matter is to
find'the Federal Aviation Administrator joining with the
Air’ ‘I iation in almost every recent case
involving attempts by State and local governments to
4 good example. Shortly after Lockheed and PSA with-
drew their application for. preliminary injunction on
May 27,1970, so that the Burbank ordinance would be
fective again on July 13, 1970, the Air Transport
Assdtiation filed an application to intervene as a plain-
tiff and the application was granted. From that time on
the case was substantially under the control of the attor-
iieys of that organization and this control has continued
Wp to the present time. Amicus briefs were filed by
thé’Federal Aviation Administration in the District
phe
wae FAA issued an announcement proposed
ides, to require installation of noise suppression de-
™ on existing jets
he Coa Bano cana
pi ‘
an ordinance of the
;
Court and the Court of Appeals. This same practice,
with some. variations, has been followed in. other cases,“
one. ,in. California”. and, one in New Jersey,“ both of
which held that. the Federal, government had not pre
a Te ee ee
Reliel Through the Comrts.
“The decision. of the Court of Appeals in this cam,
buttressed as it is: by: the decision of the District Cour,
is one, more nail in the environmental coffin. The de
cision has already been. cited and used in denying r
lief to.those seeking some relief from the adverse effecs
of poles. teiion, omnes (7. Fe agcrab” In Fume
1971 the Governor of
e
it
F
=
Stage v. v. Municipal Court of Santa Monica Judicial District,
2 Cal App 34 318, 82 Cal. Rptr. 578 (1969). :
sae ha of Hanover v. Town of Morristown, 108 NI
AS. Roel. 2d,692(1969).
J Berio <t pur-
pose of the ensuing argument to demonstrate that this
seemingly impenetrable facade of Federal power, which
bas been constructed bit by bit through the decisions
0 F the Jower Federal courts, should and must be
Clause, The Federal
Federal Avia-
“Airways v. Nebraska State Board, 347 US:
« $68
ee af
eee
oe
pr a>, Kas
393°U.S. ; Airlines, ;
woe F. 2d 812 American Airlines Inc.
bon Park, 1968), affd per
107. F 2d. 1 a a
scl aie
a ichlieeaee “—
“These Federal ‘Acts regulating air commerce
are bottomed on the commerce power of Con
gress, not on national ownership of the navigable
gt wigodm pews sma ptm dl
_e & & *
“The commerce power, since Gibbons v. Og
den (US) 9 Wheat. 1, 193, 6 L ed 23, 69, has
comprehended navigation of streams. Its breadth
covers all commercial intercourse. But the fedenl
commerce power over navigable streams does not
prevent state action consistent with that power.
Gilman v. Philadelphia (US) 3 Wall. 713, 729,
18.L, ed 96, 100. Since, over streams, Congres
acts by virtue of the commerce power, the sr
ereignty of the state is not impaired.”
- Likewise forgotten is the fact that this Court has
been less willing to find preemption where the state
action or regulation is designed to protect the health or
welfare of those who reside or work in a particular
State or community. This was amply demonstrated in
the decision of this Court in Huron Portland Cement
Co..v. Detroit, 362 U.S, 440 (1960). |
With these preliminary observations, we will proceed
with an examination of the preemption issue.
No Express Preemption.
There is nothing inthe Federal Aviation ~Act of
1958 (49 U.S.C. §1301, et seq.) which would suggest
that Congress intended to preempt the regulation
airport proprietors. In fact the Act/itself rose
ar WN
the-contrary.=Section 1106 of that Act (49 US.C.
§1506) provides as follows:
¢22: “Nothing contained in this chapter shall in any
way abridge or alter the remedies now existing at
ss Uisileas Wik ft by tntehc. nt Che perelaicns ot
, this. chapter are in addition to such remedies.”
ii ‘Head vy. Board of Examiners, 374 US. 424
(1963), Mr. Justice Brensian, in commenting on an
identical provision contained in the Communications
Act.of 1934, 48 Stat. 1064, as amended, 47 U.S.C.
§§151 et seq., stated (separate concurring opinion 374
US. pages 443-444): .
; “Rather than mandate ouster of. state regula-
__,, tions, several provisions of the Communications
Act suggest a congressional design to leave stand-
“ing various forms of state regulation, including
“© the fom embod in the New Meco state
First, the: Act contains a ‘saving clause,’ 47 U.S.C.
A414, providing that ‘Nothing in this chapter con.
tained shall in any way abridge or alter the rem-
_., dies now existing at common law or by statute,
., but the provisions of this chapter are in addition
Es Sh tare Of course, such a general pro-
ae eo am eta pace po
Transp, Co. y. Southern R. Co., 372 US 658, 671,
¢ 22, 10 L ed 2d 52, 60, 83 S Ct. 984, but
inclusion. in the statute plainly is inconsistent
t congressional displacement of the state stat-
emer rest tt memo, smote
1 Portal Civic Club v. American Airlines,
tes yea 2d 582, 39 Cal. Rptr. 708, 394 P. 2d
a
548 (1964), the California Supreme Court took a sim
ilar view of the effect of the “saving clause” (49
U.S.C. 81506) in the Federal Aviation Act of 1958
(394 P, 2d 548 at page 555):
“Here we have an expression of the intent of
Congress. The Federal Aviation Act expressly de-
clares that ‘Nothing contained in this chapter shall
in any way abridge or alter the remedies now
isting at common law or by statute, but the pro
visions of this chapter are in addition to such
remedies” (49 U.S.C. §1506.) Thus, it is. clear
’ that ‘the federal legislation was not intended to
be exclusive.” ; ,
~ ‘The validity of a claim of Federal preemption car
not be judged by reference to broad statements. about
the “comprehensive” nature of Federal regulations ut
der a particular Act or the “exclusive jurisdiction” of
Congress. Thus in Head v. Board of Examiners, supra,
it is stated (374 U.S. at pages 429-430):
“In dealing with the contention that New Met
co’s jurisdiction to regulate radio advertising has.
been preempted by the Federal Communications
Act, we may begin by noting that the validity of
~ this claim cannot be judged by reference to broad
‘statements about the ‘comprehensive’ nature of
federal regulation under the Federal Commumict
tions Act. ‘[T]he “question whether Congress and
its commissions acting under it have so far exc
cised the exclusive jurisdiction that belongs tot
as to. exclude the State, must be answered by!
—37—
_«/ iconcerning the “exclusive jurisdiction” of Congress
«+ dbeg the only controversial question: whether Con-
ewo.gress intended to make its jurisdiction exclusive.’
California v. Zook, 336 US 725, 731, 93 L ed
«>» 1005, 1010, 69 S Ct 841. Kelly v. Washington,
, 302 US 1, 10-13, 82 L ed 3, 10, 12, 58 $ Ct
Was
28”
Earlier, in California v. Zook, 336 U.S. 725 (1949),
gressional intent. There with respect to the “coincidence
ions, the Court stated (336 U.S. at pages 729 and 732-
733): 7
~~ * “Fhe Court could not have intended to enunci-
| “ate a mechanical rule, to be applied whatever the
feat.
ae * ee &
~~ “In short, we would be setting aside great num-
bets of state statutes to satisfy a congressional pur-
pose which would be only the product of this
‘ourt’s imagination.” :
M8.(1947) is misplaced. Involved in that case
te United States Warehouse Act (39 Stat. 486,
), a8 amended. It was expressly declared in Sec-
tm <7 of the Act that “the power, jurisdiction and
ith ity’ of the Secretary of Agriculture conferred un-
wate Act “shall be exclusive with Fespect to all per-
dines
sons” licensed under the Act.(331 U.S..at page 233),
and similar unambiguous statements were made in the
reports of the Committees of the Senate and the Hous
of Representatives (331 U.S. at pages 232-234). .
Notwithstanding this broad and positive declaration
of preemption, this Court held, with respect to three
other matters covered by the Illinois Public Utilitie
Act, as follows (331 U.S. at page 237):
“The United States Warehouse Act contains no
provisions relating expressly to these those aaa
ters. And we are told that the Secretary of Agr-
culture has made no attempt to exercise any juris
- « diction over them. But ee
_. Tepugnancy are conjured up.”
**# * &
Federal Compress Co. v. McLean, supra (291
US p. 23, 78.L ed 627, 54 S Ct. 267), In mor
ambiguous situations than this we have refused to
hold that state regulation was superseded by 4
federal law. Penn Dairies v. Milk Control Com
mission, 318 US 261, 87 L ed 748, 63 S Ct 617.”
As will be seen, the Federal Aviation Act of 1958
(49 U.S:C. $1301, ef seg.) contains no provisions
expressly relating to airport proprietors, except a pro
vision adopted in 1970 relating to airport safety,”
and the Federal Aviation Administrator has made no
attempt to exercise jurisdiction over them in terms of
eee
Bay, ooo National Uniformity,
To achieve any meaningful discussion of the more re-
tonal uniformity. ‘That it does not, requires little more
than a consideration of the situation at Hollywood-Bur-
bank Airport: By any standard it is inadequate even
from the standpoint of safety. It has no “clear” zones.
Its runways terminate at public streets. On leaving the
thickly populated areas no matter what the direction of
take-off may be. In the terms used by this Court in
Griggs v. Allegheny County,” this airport is “inoper-
the country where the impact of aircraft noise on those
who live or work in surrounding areas is reduced to a
‘fititimim because of favorable physical location or the
aoquisit of necessary clear zones and avigation ease-
ents: To say that all airports require national uni-
10 nity in terms of hours of operation or permissible
levels of noise is equivalent to saying that airports must
accept all types of aircraft, even though the runways
m Some are not adequate for the larger aircraft. _ :
sBeyond :this it has been repeatedly recognized that
maHional uniformity in this area of regulation is neither
‘arable nor possible. Thus in a letter dated June 22,
‘1968, submitted by the Secretary of Transportation to
“4 2.8 hate Committee on Interstate Commerce” at
ie of its consideration of the addition of Section
69 US. 84-(1962).
is letter is set out in full in’ the Appendix to this Brief
sessile
611 (49 U.S.C..§1431) to the Federal Aviation Act
of 1958, he stated:
_“Just.as.an airport owner is responsible for de
ciding how long the runways will be, so is the
owner responsible for obtaining noise easements
necessary to permit the landing and takeoff of the
aircraft. The Federal Government is in no position
to require an airport to accept service by larger
aircraft and, for that purpose, to obtain longer
-Tunways, Likewise, the Federal Government is in
no position to require an airport to accept service
by noisier aircraft, and for that purpose to obtain
additional noise easements. The issue is the service
desired by the airport owner and the steps it is
willing to take to obtain the service. In dealing
- with this issue, the Federal Government should not
substitute its judgment for that of the States or
elements of local government who, for the most
part, own and operate our Nation’s airports. The
proposed legislation is not designated to do this
and will not prevent airport proprietors from ex-
cluding any aircraft on the basis of noise co
sideration.” ' . .
The Committee concurred in these views."
In connection with the adoption of aircraft type cer-
tification noise standards for new subsonic aircraft”
the Federal Aviation Administrator stated:
“The noise limits specified in Part 36 are the
technologically practicable and economically. ree
~ ‘sonable limits of aircraft noise reduction technol
~ #Senate Report No. ro pom Cone, 2d Sess. 6-7 (1968).
Pie kee eee gg
Rederal, Register 18355-18356, November 18, | bow
now FOR $36. See also Appendix to this Brief p. 3.
Gity of Santa Monica, in response to 4 locally de-
“femmined desire for quiet, had enacted an ordinance
which provided that “no pure jet aircraft shall take off
expe ed to increasing turbo jet aircraft traffic and
1S Noise, requested (as set forth in the decision )
etal Aviation Administration to amend the Fed-
—~—42—
eral Aviation Regulations to prescribe noise restrictions
and limithtions for turbo jet aircraft operating at the
Santa .Monica Municipal Airport of the type that the
City of Santa Monica had. attempted to impose by its
ordinance. The arguments, as stated by the petitioner
embraced all of the contentions advanced by Lockheed,
PSA and ATA in this case. Petitioner argued, among
other things, that “failure of the FAA to issue restric
tions’ at Santa Monica and other airports would allow
the State and local governments to issue their own air
port ‘use restrictions” and further that “the restrictions
would result in chaos, confusion, interference and ob
struction to aircraft operations, which could te
Contrary to the national interest”. In response t
this “argoment, the ‘Federal Aviation Administrator
stated." ite
“Péitioner’s argument 8, describing the adverse
@ffects of local airport use restrictions is not sup
.. - ported by any facts or experience known to the
“-' “FAA. This form of locally responsive noise con
trot ts-clearly in the national interest in the light
~ of the quoted portion of the Senate Report. Fur
tse non tat te ale mt
Cie deen
natively applied.” (italics added).
As:to petitioner's further argument (9) that “failure
of the. FAA .to issue noise abatement regulations for
with the primary reason for the Federal Aviation Ac
of 1958, which was.the unification of the control of ait
cont operations is a single Federal agency to assure
SS pte
itll ean
safety and the orderly development of aviation”,
the Administrator's response was as follows:
+*** “Petitioner’s argument 9, coverin g the unifica-
~ “tion objective of the Federal Aviation Act of
~~ 1958, is correct insofar as it describes the need for
“°* @ single Federal agency in the field of the safe,
*" orderly development of aviation. ‘However, the Sen-
~~ ate Report makes it clear that, just as the FAA
“© recognizes the proprietary interest of airport opera-
“tors by not requiring an airport to accept service,
$0 it should recognize the proprietary interest of
~~ airport operators by not substituting its judgment,
“* ‘so far as acceptance of noisy aircraft by the air-
**~ port is conceived, for that of the State or local
~~ governmental elements that own and operate the
nation’s airports.”
Thus we have clear and unequivocal statements by
those ‘charged with the administration of the Federal
Aviation Act of 1958 (49 U.S.C. §1301, ef seq.),
Which recognize the diversity of individual airports and
their. environments, and the need for restrictions in
_Mimivof the permissible levels of aircraft noise in par.
ticular airport environments, including time restric.
fons when operational regulations have failed to pro-
Wie the needed relief. This recognition is accompanied
Fequally positive assertions that the Federal govern-
Seat is in no position to, and will not, enter this area
anbtihans
The Burbank Ordinance Is Not Preempted.
Tse wat pertinent: tee snoge recent decisions
this Court, is. Colorado Anti-Distrimination Com. ¥,
Continental Air Lines, Inc., 372 U.S. 714 (1963). At
issue im .that case was. whether the Colorado Ant-
Discrimination Act of 1957 was preempted by the Fed
eral Aviation Act of 195$ and, in particular, by Sec
tion. 1374(b). which prohibited. air carriers from sub
jecting any person “to any unjust discrimination” and
Section .1302(¢) which required “the promotion of
adequate, economical,. and efficient service by air
carriers at reasonable charges, without unjust discrimi
nations.” In holding that the Colorado Act had not
been preempted by ‘these sections of the Federal Avis
tion Act of 1958, this Court stated as follows (372
US. at pp. 723-724): :
“This is a familiar type of regulation, aime
by regulations. Notwithstanding this broad author-
_ ity, .we-are satisfied that Congress. in the Cwil
Aeronautics Act-of 1938, and its successor had no
express or implied intent to bar state legislation
in this field and that the Colorado statute, a
least so long as any power the Civil Aeronautics
ge
—45—
“@The Federal Aviation Administrator in his decision
fe the Dreifus matter made reference to the fact that
the FAA, in an attempt to solve the problem, had
provided for “(1) the use of a noise abatement run-
way When permitted by wind conditions; (2) the use of
a noise abatement departure path to avoid congested
areas; and (3) the use of raised traffic patterns.”“ He
made further reference to section 91.87 of Part 91
Of the Federal Aviation Regulations which prescribes
‘Boise abatement approach, departure and runway re-
quirements for turbine powered and large airplanes.”
He then observed as follows:
ra __“Beyond these rules, and the FAA’s monitoring
__ of the Santa Monica Airport under the FAA Or.
__ det, the FAA believes that further relief from air-
“ ¢taft noise should involve airport use restrictions
“similar to those that petitioner states were issued
in the Santa Monica City Ordinance. In short, the
<< °FAA at present does not know of any action,
/>-\short of the type attempted by Santa Monica,
» # that will satisfy the needs of the neighbors of
=; the airport or supply the relief requested.” (Italics
$0 in this case, the efforts in this regard of the FAA
Chief of the Airport Traffic Control Tower at the Holly-
“wood. Airport were likewise unsuccessful (A.
HY, 319). As in the case of the Santa Monica Air.
‘Petty the only feasible means of satisfying the “needs”
‘Whose who resided in the vicinity of the Hollywood-
Barbank Airport was to impose the time restrictions
@@ jet aircraft takeoffs as specified in the Burbank
—~46—
ordinance (which conformed to those specified in th
Santa Monica ordinance). If the power to impose such
restrictions resides in the Federal Aviation Adminis
trator, it remained “dormant and unexercised."“ . .
- Accordingly, at least until the Administrator act,
"On this point Head v. Board of Examiners, supra"
has further relevance. Before the Court in that cas
‘was the Constitutional validity of a statute of the Stat
of New Mexico which prohibited certain price adver
tising methods in the sale of glasses over radio ste
tions and in newspapers which also served the ad
joining State of ‘Texas. At issue, among ‘others, was
whether the’ statute was preempted by the Feder
Communications / Act. It appears from the opinion
but that since World War II it had largely left thes
matters in the hands of the Federal Trade Commission.
In holding that the New Mexico statute had not beea
preempted, this Court stated (374 U.S. at p. 432): -.
. “As in Colorado Anti-Discrimination Com. ¥.
Continental Air Lines, Inc. 372 US 714, at 724,
—_» 10,L ed 2d 84, 91, 83 S Ct 1022, we are satit
.. fied thatthe state statute ‘at least so long as any
power the [Commission] may have remains “dor
- mant and unexercised,” will not frustrate any pat
of the purpose.of the.federal legislation.” - .
“Colorado Anti-Discrimination Com. v. Continental Aivinn,
Inc., 372 U.S. 714 (1963) at p. 724.
374 U.S. 424 (1963).
—47—
bi Haron Portland Cement Co. v. Detroit, 362 U.S.
440 (1960), the very issue was whether the City of
Detroit by ordinance would require boilers, which had
been approved and licensed by the Federal Govern-
ment for use on navigable waters, to be replaced by
other equipment in order to relieve that City from the
diects of air pollution. In holding that it could and
that the ordinance was not Preempted by -Federal legis-
lation, this Court first observed as follows (362 U.S. at
=
_°“The ordinance was enacted for the manifest
dines, of promoting: the ‘health: and ‘welfare of
_ the city’s inhabitants. Legislation designed to free
“from pollution the very air that people breathe
Clearly falls within the exercise of even the most
‘traditional concept of what is
wn as the police power. In the exercise of
‘that power, the states and their instrumentalities
we. MY act, in many areas of interstate commerce
~~ and Maritime activities, concurrently with the fed-
~ “eral government.”
It then pointed out that Congress had for many years
Maintained an extensive and comprehensive set of con-
ttols over ships and shipping, including the inspection
steam vessels, and that these inspections were broad
‘M Mature, including, among other things, boilers. It con-
das follows (362 U.S. at pages 445 and 446):
“The thrust of the federal inspection laws is
a, limited to affording protection from the
Perils of maritime navigation.”
* * *&
es as 6
bis the elimination of air pollution to protect
“a
ae3
ea
ate,
PS
wise
48
the health and-enhance the cleanliness of the local
community.” “3
see
“We conclude that there is no overlap between
the scope of the federal ship inspection laws and
that of the municipal ordinance here involved.
For this ‘reason we cannot find that the federal
inspection legislation has pre-empted local action
‘To. hold ‘otherwise would be to the teach-
ing of this Court’s decisions which enjoin secking
out conflicts between state and federal regulation
where none clearly exists.”
Totally apart from this view of the matter is the
fact that Congress, in adding Section 611 to the Fed
eral Aviation Act of 1958 (49 U.S.C. §1431), left air
tion of the permissible level of noise that could b
created by aircraft using their airports and, as already
indicated, the discretion of airport proprietors in thal
regard has been repeatedly affirmed by the Federal
Aviation Administrator.“ This, in and of itself, is suf
ficient to validate the Burbank ordinance. Thus in Rice
vy. Board of Tradé, 331 U.S. 247 (1947), companion
cases. to Rice v: Santa Fe Elevator Corp., supra, the
ing the Commodity Exchange Act, 49 Stat. 1491,’
$45, had preempted the ability of the Illinois Com
merce Commission to regulate the Chicago Board of
‘Frade, 2 commodity xchange. In holding that th
Illinois Commerce Commission had the power to rege
late the Chicago Board of. Trade in those areas wher
& c
Bee
——i—
that Board had freedom to act, this Court stated (331
7****Tnsofar as those rules are concerned, all that
“®" the’ Act’ ‘and the regulations of: the Secretary do
s vide standards ‘for warehouses whose receipts are
‘lacceptable’ in satisfaction’ of futures contracts.
“SS eretion. °
"2 “Hetice it’ seems to us that no action of the
“Illinois Commission within the zone where the
" Botrd tide freedom to act would contravene the
federal scheme of regulation. It would be quite
i - the Secretary. But such collision is not necessary;
ta
“> 7
Toh
aA) -
2* w
& wie af *
.5 a : Rie
0 e ti
7 ‘> a
rg roe
The comments of the California Supreme Court
Loma Portal Civic Club v. American Airlines, Inc;
supra," on the effect of a holding of Federal preemp
tion are worth repeating. In that regard the Court
stated (61 Cal. 2d at pages 591-592, 39 Cal. Ree
at page 714, 394 P. 2d at page 554):
“A holding of federal.preemption would hav
the effect of disabling thé state from any action in
the entire field, and placing in the federal gov
ernment complete and sole responsibility for regu
lation of all aspects of that field. Such a holding
by a single state court would have, of course, no
effect on the conduct of other states with respect
to regulation of that field, and unless Congress had
in fact intended such preclusion of state regule
tion and were to carry out its responsibilities, there
would. result within that state a lacuna which the
state would be powerless to fill.”
In this Gase we have a “lacuna” which the Burbank
ordinance has attempted to fill.
3. The Conflict Issue.
The Court of Appeals resolved the conflict iswe
against the Appellants by concluding that the Burbant
‘ordinance “stands as an obstacle to accomplishment
and execution of the full purposes and objectives of
Congress,” citing Perez v.. Campbell, 402 US. 637
(1971). The conflict which it found was with respec
to-# Ra-msandisey9. renway preference order of 6 mie
FAA official in charge of the Air Traffic Contd ;
Tower at Holywood Barvank Airport (A- 426). By
R61 Cal 2d 582, 39 Cal. Rot. 708, 394. P. 2doM
(1964). ay
oe
also stated that the Burbank
of flight of prospective
night flight
Airport} of
(A. 427, fm. 12). On the
‘Testriction imposed by the Federal Aviation
the Hollywood-Burbank Airport. Neither was it
vt lation by the Federal Aviation Administrator of
be. contemplated by Section 611 (49. U.S.C:
of the Federal Aviation Act of 1958. It was
Memnably issued under the authority of FAA order
700.13." There was obviously no conflict between it
- wurdank ordinance. Nevertheless the Court of
itlusion of Law No. 17 (A. 404-405).
Betusion of Law No. 18 (A. 405).
Bx 30 (A. 453-455).
iiding of Fact No. 56 (A. 392).
a), ee
reduce the community exposure to noise to the lowelt
practicable minimum”, and then went on to state tht
“This assertion represents a considered determination by )
_ an authorized representative of the FAA that measur
of the magnitude of that taken by the City of Burbank
are beneath ‘the lowest practicable minimum’.” A com
plete answer to this assertion is found in our discussion
of the Preemption Issue under the hearings “National
Uniformity” and “The Burbank Ordinance is Not Pre
empted”, wherein we pointed out that this so-called
“determination” was in conflict with the determination
of: the Federal Aviation Administrator in the Dreifus
matter, namely, that when noise abatement and other
procedural regulations had: failed to provide needed te
lief, “further relief should involve airport use restrictions
similar to those” imposed by the Santa Monica ordi-
nance.” In making this statement the Administrator
observed that, as the proprietor of the Washing
National Airport he had imposed restrictions on its use.”
Time limitations, however, are not the only approved
method of reducing the effects of aircraft noise.
There was yet- another measure available to ©
duce the community exposure to noise below this “low
est practicable minimum”, namely, the exclusion of air
craft from Hollywood-Burbank Airport on the basis o
noise considerations. This likewise had the specific ap
proval. of. the Federal Aviation Administrator in Dret
fus™ and had earlier been asserted as a means of
alleviating the adverse effects of aircraft noise-by th
"Appendix to this Brief at p. 7. eteiay: —
"8d. at pp. 5, 12. er
"jd, at p. 11. | Ré a
a ae
Seqretary of Transportation.” It should be noted that the
ponmandatory..runway preference order on which the
‘Gourt.of Appeals relied was issued September 4,
969." The Dreifus opinion was issued July 10,
OG TT: _—s
- Ih view of the foregoing, the only weight that can
p properly accorded to the FAA Tower Chief's de-
ttxipination is that of all noise abatement runway pro-
cedures he had attempted,” this last one had the best
prospects. of achieving the greatest reduction of noise.
7" Interference With Federally Certificated Rights.
attempt to overcome the absence of any
2 -
toga
SB a sa
€ of conflict with any Federal statute or regu-
f, the argument was advanced in the District
‘and carried over into Conclusion of Law No. 17
t is easily demonstrated. Under Section 401 of the
ra Aviation Act of 1958 (49 U.S.C. §13%)) the
Sie
hereby authorized ». .” [Pl. Ex. 8, A. 104]. Under
Subsection (i) of Section 401 of the Federal Aviation
Act of 1958 (49 US.C. §1371(i)) a Certificate of
Public Convenience and Necessity issued by the Civil
Aeronautics Board does not “confer any proprietary,
property, or exclusive right in the use of any airspace,
Federal airway, landing area, or air-navigational facil
ity”: (Italics added). The Civil Aeronautics Board itself
has recently recognized the limitations imposed by this
subsection in its decision in Pacific Northwest-Califor-
nia Investigation, Docket 18884 of May 12, 1970 [PL
Ex. 35, A. 118] when it granted to Continental Air
Lines, Inc. a route which involved the use of Ontario
International, Long Beach Municipal, Hollywood-Bur-
bank and Orange County Airports, As appears from
its decision, the City of Long Beach and the County of
Orange were unwilling to allow Continental to use their
airport facilities and, in that connection, the Civil Aero
nautics Board stated at page 13:
“Since cooperation of the local airport author
ities will be needed before any service can be it
augurated, it will be up to the satellite carrie
[Continental Air Lines, Inc.]. we have selected
convince these authorities that their express fear
are exaggerated or are outweighed by affirmative
sderations.” ’
At the time of trial in this case Continental. had bees
unsuccessful in persuading these local airport author
ities to accept their aircraft and as a e.
wag not providing any service to ot, from these Ps
ticalar airports (A. 239°242). : *
power; without violating any Federal statute or regula-
tion, t0 exclude aircraft on the basis of noite considera.
fe nities es
s
‘Admittedly it precludes entry into the navigable air-
space from }the Hollywood-Burbank Airport between
the hours of 11:00 p.m. and 7:00 a.m. except in emer-
fetcies. That there is nothing unusual or unreasonable
out this is attested by the fact that the Federal Avia-
—$6—
raceme pepe aciheopniieattomebedogsenatiage:
Act of 1958."
Nav abet ‘cb ie Cicclh ot he Cay ol Beene
enacting the ordinance in question, clearly accords with
and implements the policy of Congress as expressed in
its more recent legislative enactments, (e.g., The Ne
tional Environmental Policy Act, 42 U.S.C. §4321;
Environmental Education Act, 20 U.S.C. §1531; Air
Quality Act of 1967, 42 U.S.C. §1857 et seq.; Environ
mental Quality Improvement Act of 1970, 42 om
§§4372-4374).
Of importance for the purposes of this discussion
are the observations of the California Supreme Court
in Loma Portal Civic Club v. American Airlines, Inc.
(1964), 61 Cal. 2d 582, 592, 39 Cal. Rptr. 708, 714,
394 P. 2d 548, 554:
“Moreover, we note that noise abatement is a fed-
‘eral as well as a state aim, and when not incon
‘sistent with safety . . . would not necessarily
preserit a conflict with federal law but might well
Hiferce te™
The Court of Appeals, in its statement that the effect
of the Burbank ordinance “was to terminate the right .
of flight of prospective passengers [approximately 80]
through this portion of the airspace at this time,” was
obviously attempting to bring its’ prohibition within
the language of Section 104 (49 U.S.C. §1304) of the
Federal Aviation Act;of 1958 which declares “a public
tight of freedom of fransit through the navigable air
space of the United States” (Italics added). In actuality
ths ‘onrtinince' dit “sot deny ‘freedom of transit theca
~ Appendix to this Brief at pp. 11-12. / is
silica
‘the navigable ‘airspace. What it did was prohibit entry
p:the navigable airspace from the land on which the
wi irbank Airport is located during the pro-
Where is: nothing in the Federal Aviation Act of
1958 which confers on the public or anyone else the
fight 10 enter the navigable. airspace from land where
such entry has been prohibited by an ordinance or land
ise tegulation adopted by a municipality. It is well
settled in California that, in the exercise of its police
power, a municipality may enact ordinances the ob-
jectiof which is to abate or prevent nuisances caused by
businesses located within its boundaries. Thain v. City
0 Palo Alto, 207 Cal. App. 2d 173, 24 Cal. Rptr. 515,
523 (1962) [Hearing denied by Supreme Court]; Boyd
¥. City of Sierra Madre, 41 Cal. App. 520, 183 Pac.
0, 232 (1919). It is also well settled that municipal-
$ may enact land use regulations which have the
: Hollywood-
4
Ow)
airport. Bet
m, it is i
—,) =
use by every typeof aircraft, no matter what the effect
may ‘be on:those who reside.in the surrounding ares,
To tlevate ‘the ‘possible convenience of 80 persons
departing from the Hollywood-Burbank Airport for San
Diego once a week on a Sunday night at 11:30 p.m fo
a point of constitutional significance, is to us a perver
sion ‘of this Court's teachings in Perez (402 U.S. 637)
and other decisions. The same may be said of the nop
mandatory runway preference order. It is clear from
the Perez decision that if the majority of this Court had
been convinced that the Arizona statute would serve to
promote the health, safety or welfare of the citizens of
Arizona, the constitutionality of the statute would have
been sustained. The same observation is applicable to
Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945'
and Bibb v. Navajo Freight Lines Inc., 359 U.S. 520
(1959).
| Magnifying the possible convenience of these 80 per
sons and disregarding the need of thousands of person
who reside in the vicinity of Hollywood-Burbank Air
port for uninterrupted sleep on a Sunday night prior
to a Monday morning, does not comport with a proper
cannes ag ae ey ee Pele
dinance, -- :
: Thi. the ‘iiaace wad reaicnebla' and neceaneyh
attested by the fact that the Due Process issue (XI
Amendment) was withdrawn by the Plaintiffs from th
District Court’s consideration (A. 66-67), and further
statements made:-by the counsel for the plaintiffs during
the Course of the trial [R. Tr. pp. 437-438], The nec
and fiecessity for providing some relief for those who
reside in the vicinity of Hollywood-Burbank Airports
further demonstrated by the fact that in the area i
pean) ome Be ene ypc Op
—59—
- has decreased by 11.1% since 1960" and in
area immediately to the east of that area by
‘152%. As to the area immediately to the east of
f i, “East-West” runway, the population has decreased
fen, 1960 by TA%” All of the areas referred bo
Ie Js in excess of 100 plus PNdb.” This indicates
that those who have been able to move from these
| done so. The rest, presumably unable to do
$9, continue to remain subject to the severe noise pol-
lution created by operations at the Hollywood-Burbank
hirport. The only real relief that these residents have
ii is that provided by the Burbank ordinance during
ie short period of time that it remained in effect prior
9 the issuance of the restraining order and during the
~ od from July 13 to November 30, 1970, as a result
F Aviation Administration could have pro-
pd this needed reliet, not by regulation of the airport
ietor (Lockheed), but through operational regula-
i ed upon the aircraft which it controls. In-
»$. Census, Burbank Code Area 3111: 1960 popula-
3286; 1970 population, 4,012.
P See coe Aree 3110: 1960 population,
) population, 3,6
$. Census, Burbank ‘Cle Area 3105: 1960 population,
19 Be epi Si
anch ; ay epee Noise and the Metropolitan
«i vt Lie Angeles with Special Reference
pf, 170 ayo Congress Catalog Card No. 72-
‘te otnc 8, supra, The Court of made no specific
of corporate jet aircraft, other to note that such
j (This footnote is continued on next page)
iq
—0—
4. Burden on Interstate Commerce. sage
* Although the Court of Appeals declined to consider
the issue as to whether the Burbank ordinance const
tuted an unreasonable burden on interstate comment,
the District Court concluded that it did. This concly
sion ‘was reached, not because the ordinance did in fact
burden interstate commerce, since it only affected ont
regularly schetuled intrastate flight and flights of cor
porate jet ‘aircraft, but! rather on the basis of ATA}
contention that the ordinance had to be viewed as if it
were adopted by all major airports within the United
States. A similar approach was attempted by the airlines
in the recent case of Evansville-Vanderburgh Airport
Authority District of Delta Airlines, Inc., 405 U.S. 70
(1972). There the airlines contended, as to the pe
aircraft were go emg pager tint off during the
' v. Town of Morristown, 1%
=
oe
‘tapita charges imposed on airline passengers by State
port.proprietors, that “If such levies were imposed
‘Byeach airport along a traveller's route, the total ef.
fecton.the cost of air transportation, could be pro-
itive, the competitive structure of air carriers could
‘beaaffected, and air transportation, compared to other
fos. of transportation, could be seriously impared”
05 USS. at page 721). In rejecting this contention
i: that these charges were constitutionally
miss this Court stated (405 U.S., at page 722):
» =“But there is no suggestion that the Indiana. and
New Hampshire charges do not in fact advance
he constitutionally permissible objective of having
>, iMterstate commerce bear a fair share of the costs
..#0 the States of airports constructed and main-
for the purpose of aiding interstate air
In that circumstance, *[a]t least until Con-
Gress chooses to enact a nation-wide rule, the
power will not be denied to the State[s].’ Free-
than v. Hewit, 329 US, at 253, 91 L Ed at 272;
te also Southern Pacific Co. v. Arizona, 325
US 761, 775-776, 89 L Ed 1915, 1928, 65 S$ Ct
3 ‘1515 (1945).”
se
@We.should note here parenthetically that the -airlines
[the passengers which utilize the Hollywood-Bur-
pAirport are not bearing their “fair share” of the
mt their use of this airport. It is the owners of
erty and residents under the necessary approach-
@nd departure paths of that airport who bear a
tial cost of its operation. Not only are the air-
tnd their passengers enjoying a “free ride” at the
aan
a
—§2—
<Bileck ot the Burbank Ordinance, gy,
ceuick truss teiialaiarsaiiiadidaeareiar-en' ial
ment Of the ordinance has imposed ‘or would impor
any burden on. interstate ‘commerce. The burden, ‘¢
course,° was upon Lockheed; “PSA ‘and ATA to show
that enforcemenit of the ‘ordinance operated to prejudice
interstate commerce (Interstate Busses Corp. v. Holydke
Street R. Co. 273 US? 45 (1927) at p: 51). In enatt
ing the ordinance ‘the Council of the City of Burbank
was fulfilling’ thé duty imposed ‘on ‘it “to protect’ the
well-being and: tranquility” of the City (See Breard ».
Alexandria; 341 U.S. 622:(1951) at p. 640).
The casé’of Huron Portland Cement Co. v. Detroit,
sipra; (362 °U.S. 440), discussed in’ connection with —
the presrtiption issue, is equally pertinent to this ism.
The following excerpts’ from the Court’s opinion at
relevant (362 U.S.'at pp: 447-448): ;
Es “The mere possession of a federal license, how
~ ‘ever, does not immunize a ship from the operatio
of the normal incidents of local police power,
mot constituting a direct regulation of commerce.”
* 2 8
. the Detroit ordinance requires no more than.
- compliance with an orderly and reasonable scheme
‘of-conimunity ‘regulation. The ordinance does 10
- exGlude ‘a licensed vessel from the Port of Detroit,
- por does it destroy the right of free passage. We
cannot hold that’ the local “regulation so burdess
a ET Eater 3
ee valid.” ee ae
Hron ‘cannot be viewed 38 an isolated colon
of law outside of the mai strea ‘of this Court's tea
ings. to what sonsltuies “an anlawol burden 00
state. commerce. It is the cornerstone of the deci-
tain Head v. Board of Examiners, supra (374 U.S.
fhich, as we have previously observed, sustained
te of the State of New Mexico forbidding cer-
advertising methods in the sale of glasses
dio stations and in newspapers which also
the adjoining State of Texas. In so holding, the
led (374 USS. at pages 428-429):
“Like the smoke abatement ordinance in the
fon case, the.statute here involved is a measure
< addressed to protection of the public
lth, and the statute thus falls within the most
iti concept of what is compendiously
wn as the police power. The legitimacy of
te legislation in this precise area has been ex-
ssly established. Williamson v. Lee Optical of
Ja., Inc. 348 US 483, 99 L. ed 563, 75 S Ct
|. A state law may not be struck down on the
te showing that its administration affects
rstate commerce in some way. ‘State regulation,
minate against interstate commerce or operate
disrupt its required uniformity, may constitu-
ally stand.’ Huron Portland Cement Co. v.
1 supra (362 US at 448).
| has not been suggested that the statute,
licable alike to ‘any person’ within the State of
. Mexico, discriminates against interstate com-
7 as such. Nor can we find that the legisla-
impinges upon an area of interstate commerce
..by its nature requires uniformity of regula-
t The appellants have pointed to no regula-
Ons-of other States imposing conflicting duties,
—64—
»<) Imes, 3972: US.714,.10 L ed 2d 84, 83:S Ct 1023;
_We-hold that.the New Mexico statute, as applitd
-». hereito prevent the publication in New: Mexico:
.. constitutionally. prohibited ‘burden upon interstate
- (Commerce.”” 9 - Sa
‘The Burbank ordinance, like the New Mexico
statuté, controls the proprietor of a ‘business located
within tts boundarie ele iis td
by’ Odlier cities of ‘airport t proprietors cannot be readily
nanan
“The fears expressed by ATA’s s witnesses, that if the
Burbank ordinance is sustained it will lead to a prolifer.
ation of similar restrictions throughout the country, find
ho basis in fact. States and elements of local gover
poll gas ‘for the most part, own and operate ou
Nation’s airports have always had the power to deny the
use ‘of their airports to aircraft on the basis of noix
considerations,” and there is no evidence that this
power has been indiscriminately or unreasonably exer
cised. There will be time enough for this Court, «
other ‘courts having jurisdiction, to consider the reaso-
abletiess of any regulations imposed by other loal
authorities or States on aitport Operations, when and if
such’ occuts. ‘The “possibilities of conflict and repug
nancy” which ATA fias “conjured up”, by contending
that’ the ‘Burbank' ordinance should be viewed in tk
aspect as if applied to all major airports throughout the
United ‘States, is purely an attempt to cloud’ the isu
(See Rice ¥. Santa'Fe Elevator Corp.. supra, 331 US
pairs hth
SrsEretsizt Stig et
© : : eSiee : ‘
ilies
“Further discussion is therefore unnecessary except to
F out that, under at least one decision of this
louit; theextent to which commerce requires a single
ity in control has been determined to be a legis.
question, not a judicial question. Thus in South
a State Highway Dept. v. Barnwell Bros., 303
(1938) the Court stated (303 U‘S. at pages
):
“Congress, in the exercise of its plenary power
tegulate interstate commerce, may determine
Mate’s regulatory power. But that is a legislative
ot judicial function, to be performed in the light
‘Congressional judgment of what is appro-
e of Fact No. 83 (A, 401)
of Law No. 19 (A. 405).
ere ae .
ee
BES
+
5
es ae
priate regulation of interstate commerce, and th
extent to which, in that field, state power am
Jocal interests. should be required to yield tothe
national authority and interest. In: the abseae
of such legislation the judicial function, under
the commerce clause as well as the Fourteenth
Amendment, stops with the inquiry whether th
state legislature in adopting regulations such
the present has acted within its province, and
whether the means of regulation chosen are reason
ably adapted to the end sought.” (Italics added.)
- Up to the present time Congress has not seen fit to
place airports utilized by air commerce under the con
trol of any Federal agency, and, as previously ob
served, airport proprietors are not subject to Fedenl
economic or other regulation except in the area of air-
port safety.”
5, Violation of Fifth, Ninth and Tenth Amendmet
Rights.
One of the points which Appellants stressed in ther
argument before the Court of Appeals was that a dec
sion holding Burbank powerless to enact and enforce the
ordinance in question would allow private airport pro
prietors, such as Lockheed, to ride roughshod over the
rights of owners of property surrounding airports ia
violation. of constitutional guarantees. This is exactly
what has occurred and is occurring since, the Distt
Court rendered its decision.
sll thet talinddeateadt exsediact of: the: Voted: Al
Acheabiditesiidis usd Gi Sililindt Grobe ‘en cosine a
ee ae ee Airport ~ sufficient “=
runway are on land
(A. 380-381);
$2,000,000 on the insemfatt”
iliac
is satisfied and just’ compensation paid, must be up
held if that Amendment is to have any real meaning,
These’ arguments are not without support in decision
of this Court. In Bell v. Burson, 402 U.S. 535 (1971),
this Court held that before a person’s driving prive
leges could be terminated because of involvement in an
accident, the Due Process Clause of the Fourteenth
Amendment requires that a hearing be provided’ for
the determination of whether there is a reasonable pot
sibility of a ‘judgment being rendered against him as 2
result of the accident. In Sniadach v. Family Finance
Corporation, 395 U.S. 337 (1969), it was likewise
held that before a person’s property could be taken
under a prejudgment garnishment, the Due Process
Clause of the Fourteenth Amendment required notice
and a hearing. To the same effect is Fuentes v. Shevin,
407, U.S. 67 (1972). The following excerpts from that
opinion are particularly pertinent (407 USS. .
plies
. the prohibition against the deprivation of
scintsh nlthiahi: duis dencsin- ck late, ated
high value, embedded in our constitutional and
political history, that we place on a person's right
to. enjoy what is his,-free of governmental inter: .
Ci Slate OHI A
**s *
“But no later hearing and no damage award cap
see Fe ae ok Piseranees ee erooes.
already occurred. ‘This Court has not ... .
"fedead ee praca tcxeodiicg thet « toe
be done if it can be undone.’ [Citation. ]
spat .“This is no new ‘principle of constitutional lay,
The right to a prior hearing has long been’ ..
‘States, 277 U.S. 438
ft a
Page 478):
sali
If the Fifth Amendment is not applicable, there iss
respectable body of opinion that the right to a decent
environment is one of the rights retained by the people
under the Ninth and Tenth Amendments, and that
it would appear to be beyond question that one of the
rights retained by the people under the Ninth and Tenth
Amendments was the right to restrain private persons
“Thoss»who! would attempt to protect the environment
ts are striving to carve outs
existing provisions of our Constitutioe.
et reg een oe
A.B.A.J. 1061 (Nov. 1970). Such ogre
eae ae
haning\oeen: enacted by a legislative body duly elected
b the People of the City of Burbank,
"We hiave reserved the case of Griggs v. Allegheny
oF
sa
County, 369 U.S. 84 (1962): for separate discussion
iB the scope of Federal control and that it is the
. pro brietor who makes the necessary deterinina-
pa where the airport should be built, the length
tl ies
of its runways, and other features which would affect th
type and size of the aircraft which may: utilize’ it
facilities. We certainly do not dispute the validity of this
conclusion, but what we stated before the Court of
Appeals has equal validity here, to wit:
“Griggs. and-the decision of the District Comt
in this..case cannot stand together. If the FAA
has the power Over airports which it and the Ap
pellees. contend it has, then Griggs must :b
overruled. If such should ever occur, there will be
at least one good result, namely, the Federal Gov.
ernment and the airlines will no longer be able to
avoid. liability for the destruction and damage
caused by an airport, such as Hollywood*Burbank
_» Airport, which has neither provided nor acquired
adequate approachways to its facilities.”
‘We say again that if Congress has in fact pr
empted the field of regulation of noise created by je
aircraft to the exclusion of States and local govem
_ ments, as the opinion of the Court. of Appeals in thi
case holds, then the decision in Griggs must be recor
sesh duiailig cali thin,Kiceak cabs de. Wik eae
should go responsibility. If the decision in this cases
allowed to stand without reversal’ of Griggs, then th
' Federal Aviation Administration will be able to coe
tinue its questionable course of conduct without inter
ference, and the Federal government and: the airlins
will remain shielded from liability for their actions.
* 96
WSee Lasser, The Aircraft Noise ‘Problem: Federal em
Bis Local Liability, 3 Urban Lawyer 175 (1971). Mr
“While we recognize that liability for a “taking” of air
on noise easements necessary for the operation of the
Hollywood-Burbank Airport is not directly at issue in
this case, neither was the liability of the Federal Govern-
mentor the airlines for such a “taking” directly at
is ¢ ‘in the Griggs case. Nevertheless, on the strength
ofthe Griggs decision, there has been no attempt to our
ko : led t to impose liability for such a taking on the
Federal government except in cases where the Federal
geverament is the owner and operator of the airport.
Khim fact the Federal government by virtue of legisla-
fon or exercise of power has preempted the ability of
ies and local governments to exercise reasonable con-
Wer airports within their boundaries, in terms of
noise abatement, then we feel that the Court
| ak this opportunity to reverse Griggs to the
Kent indicated. Noise pollution by jet aircraft is too
igus a matter to allow for.the time it takes a decision
h this Court, should someone have the time, en-
Miy) money ‘and fortitude to weather adverse decisions
the lower Federal courts and finally reach this
—T4— :
statue dean distil dane eal
relief from the adverse effects of noise pollution caitsd
by. jet aircraft: will only come ‘when the noise from
jet engines is. reduced. to liveable levels. As has already
been demonstrated to..a degree, the. Prospects of, this
' ir ose here to fe
a ¢ for the solution
Faas wee eta 6
phase of” this argumént in which we contend that if
the safety, health and ‘welfare of the People of thee
United States is to be preserved, States, local gover
ments and the Courts must be released from the strait
jacket of the preemption. and conflict. doctrines which
have been gradually extended in their scope and effin
since Gibbons v, ‘Ogden, 9 Wheat. 1 (1824). We will
attempt to dethonstrate the imperative necessity for this
Court’s reconsideration of these doctrines in light of th
situation: as it exists in this country today and how it
will bein the future if this Court should fail to intr
yene. There can be no dispute that such a review and ©
consideration are well within the issues involved in ths
case.
‘Relief at the Federal Level. :
Mueh. has already -been said: regarding~ the posture
and inaction of the Federal Aviation’ Administration ia
the area of abatement of jet aircraft noise, and it need
not be repeated here. Reference has likewise been ma
to the apparent impossibility of persuading the Congres
to: shift the responsibility for the abatement 6f aircraft
pole, 08 et Federal agency less subject to domine
tion by the airlines. While we have the National Enviror
ee ee
eM? US.C. $4321, et seq.
onli
at Act of—~1970,” these Acts provide no pres-
pect to new projects which may have an adverse
n the environment, it has been necessary for this
‘and other courts* to compel the Federal
concerned to give proper consideration to the
tal impact of proposed actions in accord-
h the provisions of the applicable statute—
ugh this Court has, even without the benefit of
‘legislation by Congress, intervened to protect
ronment, there is no indication yet that:
lement the broad policy statements in these
P upholding State and local governmental regula-
fim this field. The California Supreme Court has
ently taken the State Legislature at its word
zed similar broad statements of environmental
mtained in the California Environmental Qual-
of 1970'* to extend the requirement of an
ental impact report to private Projects, even
Overton Park, Inc. y. Volpe, 401
Coordinating Committee, Inc. y. Atomic
ECommission, 449 F. 2d 1109 (D.C. Cir. 1971). There
Se fy, Ar showt, ie to 000 that lnaportot logit
0 i is to see that t tive
mposes, heralded in the halls of Congress, are not lost
* rected. in the vast hallways of the federal burean-
v. New York, 283 U.S. 336 (1931); Udall
ower , 387 U.S. 428 (1967).
ends of Mammoth v. Board of Supervisors of Mono
eovember 6, 1972, Sacramento 7924. This case has
Public Resources Code §21000, et seg.
misfortune of baving wo reside i the vicinity of n
port servicing jet aircraft. These could include a require
a am. eS See at
ce
Li
ek
zt
ace
i
iin
a
retrofitted for noise. suppression to the extent possible
under ‘the present state of the art, Other interim
measures which have been adopted or suggested aro the
py
ll
pit
Ht
td
Douglas poy 1011 and Fokker T-28. Jets bull
roma tt 1 not be certified, officials said, for flights. be
tween 11:30 p.m. and 6 a.m.
y
itt
l 3
if
i
pet.
s alteady been indicated to some extent,
O'present prospect of obtaining injunctive relief
he courts because of the views expressed by the
rts in this case and in other Federal lower court
The one bright spot is the decision of the Nev:
uperior Court in Township of Hanover v. Town
ristown, 108 N.J. Super. 461, 261 Atl. Rptr. 2d
960), which imposed a curfew on jet operations
tie Morristown Airport. However, it is reported that
i Federal Aviation Administration is seeking a Fed-
tra ourt injunction to enjoin the enforcement of this
¢atfew on the ground that it violates the Supremacy
Giiuse of the United States Constitution, and if the
pres bat pattern is followed, it will be successful. Even
‘the Californiz Supreme Court has been unwilling to
we its injunctive powers to interfere with the flight
aths of certificated air carriers using the San Diego
Airport, although there are suggestions in the opinion
ab if the airport proprietor had been a party, it might
hav done something about the resulting noise pollu-
|. Reversal of Griggs v. Allegheny County.
wersal of Griggs v. Allegheny County™ to
fie extent of additionally imposing liability for the tak-
fof air or noise easements on the Federal govern-
eat and the airlines would no doubt serve to dramati-
stimulate the Federal Aviation Administration and
wt. ‘See Berger, Nobody Loves An Airport, 43 So.Cal.
Mat'p. 748.
fa Portal Civic Club v. American Airlines, Inc., 61 Cal.
39 Cal Rptr. 708, 394 P.2d 548 (1964). .
3 _ ; re z
eS DP! fae eee Sea SS FS th —_
. my . \ Fe xs
. o Sg ote o bY > op ee ‘ : ¥ > 5 x v de
oe 4 ts Ss * Pe aes f oer
f o.2 *_ 4s * . t . I f
nf 1uga | C I oI is: ‘ i PPA Sy ag 4 ught 4 "
the. taking of air or. noise easements, such litigation
is painfully slow and in the end probably serves fx
the. most.part to-benefit the attorneys.involved. As was
observed in the New. Jersey case referred to above,”
pollution, caused by jet aircraft.” Not everyone liviag
lives: and. property: are so severely affected by noix
er, £¥ per
: —79—
‘jaethevicinity: of an airport owns the property on
Wiehe ‘resides, It probably matters little to the land-
od wh: thereffect of such noise pollution may be on
iiitenants, since he would be looking shead to the
ks nm fez oning to ial or i j trial use
‘Weuld’enable him to achieve a handsome profit. The
Witedy"Of damages serves no useful purpose to a
senior c: izen:who has witli considerable agony observed
theiproliferation and increase in jet aircraft noise. The
valusiof his ‘property has either remained static or de-
eased in spite of the inflationary trend. It would do
legood to seck damages since even if he were
lely' successful, and after payment of the fees of
ttorney, he would be unable to duplicate what he
emption and conflict doctrines of this Court
at a sufficient area in which interim measures,
‘ch as the Burbank ordinance, can fit without viola-
S08.of the Supremacy Clause of the United States Con-
tition, where, as here, Congress has not clearly in-
intent to preempt the area of jet aircraft
sment. Any thoughts that Congress may have
ction is tempered by the knowledge that if it
Will eliminate the shield from liability pro-
Should Griggs
—80—
preemption of this field. To support this assertion»
quires’ nothing: more, than 4-reference to this Courts
decision: in -<Evansville-V anderburgh Airport Authority
District’ v:, Delta: Airlines, ‘Inc’* The ink was hardly
dry on that opinion:‘when the airlines and the Feden!
Court’s decision.”*. This legislation: was: passed by both
Houses of Congress and immediately sent to the Pres
legislation was. included with appropriations for air
ene nee ne ene
dent vetood the measure." @
’ Another example ‘of the: eae of the sir
in overcoming State legislation is found in their ability
to secure passage by Congress of legislation referred to
ad the’ Clean’ ‘Ait “Amenduients’‘of“1970."* One d
pean cature Of this tcgislation was a sectin
ascpeilg Giles illece'eny aadend sad
ing emissions ‘of ‘any air pollutant from any aircraft o
engine thereot unless such’ standard was identical with
the’ Federal’ standard.“* The stimulus and reason fo
their ‘sudden; activity was to foréstall the necessity
ea ae ee ee
7388405 US. 707.(1972). bi
Senate, Bil 3755, 92nd Cong. 2d Sess. *
cs Seer Technology, “Nov. im
Cena Ar Amendments of 1970, PL. No. 91-604 o
pe has > ee
‘ Z
of
if
2
Taylor; 353 US.
(7
—82—
ways been so. In the earlier case of Napier v. Atlantic
Coast Line Railroad Co., 272 U.S. 605 (1926), which
involved the ability of States to prescribe automatic fir
doars on railroad engine fire boxes and engine cab cu
tains, regulations, admittedly designed to protect the
health, safety and welfare of those involved in ther
) operation, this Court flatly declared that the States'in
volved could not do so because of Federal preemption,
There is some language in that opinion out of harmony
with the opinions in Colorado Anti-Discriminatio
Com. and Head.™ A later decision of this Cour,
Terminal Railroad Association v. Brotherhood of Rait
road Trainmen, 318 U.S. 1 (1942), appears to ha
ignored Napier, even. though it was cited in the briels,
and sustained a regulation of the Illinois Commer:
Commission which required cabooses on trains operat
ed in interstate commerce to protect the health, safety
and welfare of those involved in their operation, ln
Huron,™ although Napier was cited in the majority
opinion,’ it was chiefly relied upon by the dissent s
support for the view that the Detroit air pollution ont
nance had been preempted.’ Notwithstanding ths
trend, the Court has continued to at least state the ruk
that if Congress has clearly expressed its intent to
cupy a particular field, State or local regulation in that
field will not be permitted.
1429372 U.S. 714 (1963).
108362 US. at p. 443.
e362 US, at pp. 452-453.
CE OS ae eee eee
ae
a
“08:
Beh Be 2
1 vi
+
the States to legislate
and thus has permitted
e euations to mesh with federal controls.
i¢ Federal Compress ress Co. v. McLean, 291 US 17,
kt Ct 267; Townsend v: Yeo-
: 54, 81 L Ed 1210, 1220, 57
a om
| SCt842; Penn Dairies: v. Milk Control Comfy
: Ail BERNE O61, EA. Ba: 248, 63 S Ct 67,
‘ : “Even: here, (there have been: dissents when it
naan rpm cenmemtaetom: )
_ the facts of a case.” coe |
Some. judges of the lower Federal hea
cated..a similar reluctance in applying an alin
Glusive doctrine in.areas where health, safety and we
fare are. involved. An example of this is found in the
ing opinion in Northern States Power Company
v,,.State of Minnesota, 447.F. 2d 1143 (1971), a caw
which, is presently before this Court for review. Whik
the. dissent in that case recognizes the existence of the
preemption. and conflict. doctrines. which would pre
clude a State orlocal regulation if Congress so declares,
nn ompine eisketts:© dagirine which would be sem
mh St
this country, and cookd jpell. be. doctine which ait
be .adopted. if the legitimate interests of States and
local governments. and their citizens are to be protected
against the continuing encroachment of Federal powe.
It is there stated (447 F. 2d at pages 1157-1158):
_ “The majority opinion also. observes that state
_. might. adopt overprotective environmental coat
aor ns which would go the extent of stultify
_ ing the industrial development and use of ston
nergy. I agree that such a possibility exists, How
Spt dn ape tiene fase fae tral conc’ ae
othe case-on the. basis of absolute preemption as 4
fatter of Jaw.and refused to permit. testimony 0
-; the reasonableness of the state regulations or th
, balancing of environmental protection against the
peed tevelopment othe wo} atomic a.
LF
“
4 by the framers of the United States Consti-
fe’ Was necessity then to protect the Federal
“from those who would have preferred
ue Whider the Articles of Confederation. But
tion has changed. Now the States and local
fal grants’ such as those authorized under the Air.
ind’ Airways Development and Revenue Acts of
me insidious trend is noted in recent Federal
in. In the Air Quality Act of 1967 Con-
has delegated to the Administrator of the Environ-
I Protection Agency veto power over State air pol-
tegulations pertaining to. motor vehicles.” The
rusion was achieved in the Noise Control Act
—
of 1972, just recently enacted.” Abnsoguesiciaille
tirely ‘clear, it would appear that no State or political
subdivision can establish: -and enforce standatds or cop
trols om-environmental noise emitted by railroad equip
ment or facilities and motor carriers, or control their use,
operation or moyement, unless first approved by. the
dmir Pav, ge, Yo nom have fee, legtimat, ag
cise of the police powers of States and local gover
es, Bee sites abet to the shin or taal
of whoever may be occupying the position of Adminis
trator in that Federal agency, or his subordinates.
The quality of our environment has deteriorated
such an extent. that the freedom to live in an atmos
ig Ae GRR eda
The,.“domestic tranquility” which the framers of the
titution, sought to promote is no. longer with u,
not,only in the area of noise but also in other areas of
citizen. need... a
” ‘The: primary-ceason. for-this is that. Congress has y
and: large ceased to. be responsive to the will of the
people; To a large degree needed legislation is under the
control.of committees of the House and Senate. Indivi¢
ual smembers-of:Congress.can, by delaying tactics and
’ other. means, frustrate the passage of necessary leg
ition... Special interest groups, such as the airlines, ap
pear to have am. unusual ability to block legislation ia
ae area of concern to them.
: i. We, therefore, respectfully urge this Court to ©
examine the preemption and conflict doctrines as pe
IHS eh
iHouse of Representatives Bill No, 11021, 92nd
2d Sess.; 118 ry. Fae (daily ed. Oct. 18, 1972) x
at pp. S 18638-S 1
181See Section 17(c)(2) “Wy Seon 18(6)(2), Noise: Gis
trol Act of 1972, footnote 130, +. :
aS
ae
m; Ot aa t eee on
a ‘such State and local governmental enact-
on of the foregoing, it is respectfully sub-
at the decisions of the Court of Appeals and
ict Court in this case should be reversed and
ction issued by the District Court dissolved.
SAMUEL GORLICK,
City Attorney,
RICHARD L. SiG, JR.,
Assistant City Attorney,
Counsel for All Appellants
Except Samuel Gorlick,
RICHARD L. S1gG, Jr.
Counsel for Appellant
Samuel Gorlick.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.