Amicus Curiae Brief — Burbank v. Lockheed Air Terminal, Inc.

os Ke) Supreme Court, U.

* „„

DEC 22 197

Supreme Court of the ce

October Term, 1972

No. 71-1637

CITY OF ‘BURBANK, et al.,

Appellants,

vs.

LOCKHEED AIR TERMINAL, INC., et al.,

Appellees.

——ů ä

APPEAL FRoM THE UNITED STATES Counr OF APPEALS

FOR THE NINTH CIRCUIT

—————————————————

BRIEF OF THE PORT AUTHORITY OF NEW

YORK AND NEW JERSEY, AS AMICUS CURIAE.

ee

got foe tie Port Authority of

ort

New York and New Jersey

Office and P. O. Address

111 Eighth Avenue

New York, New York 10011

Tel. (212) 620-7380

Haig!

14

1

Congress’ intent, in the field of aircraft noise

abatement, is to preempt for exclusive Federal

Government control all State and local police

power regulation but to permit airport operators

to impose non-discriminatory restrictions on air-

/ v

A. The Legislative History of the 1968 Aireraft

Noise Abatement Amendment

B. The Contemporaneous Construction of the

1968 Aircraft Noise Abatement Amendment

C. The Legislative History of the Aireraft

Noise Section of the 1972 Noise Control Act

%%% / »˙O Fie ab ceneis

! ĩ ² cee Rien

11rr⁵ĩ—ẽ⁵ẽ1. ð- ⁊ d ewes beak KS

A. Resolution of Board of Commissioners of

Port Authority, December 14, 1972.

B. Jet Terms and Conditions for Use of

Kennedy International Airport ...........

0. Excerpt from S. Rep. No. 1353, 90th Cong.,

— . „en.

Table of Authorities

CasEs

n Airlines, et al., Port of New York Au-

la

la

11

*

Supp. 226 (E. D. N. V. 1967), aff d, 398 F. 2d 369

(2d Cir. 1968), cert. denied, 393 U.S. 1017

6 scsktisncecncu PTI rssh Se 9 n

Commissioner of Internal Rev. v. Shamberg’s

Estate, 144 F. 2d 998 (2d Cir. 1944), cert. denied,

JJ SARS NCCE Sie renee renee +3

In re Dreifus, F. A. A. Regulatory Docket, No. 9071

JJ... AE atten es 0k: es shew sie 13,14

Griggs v. Allegheny County, 369 U.S. 84

( A ANSI Oh dit 1, 4, 5, 6, 11, 12, 13, 18

Helvering v. Gerhardt, 304 U.S. 405 (1938) ..... 2

Port of New Vork Authority v. Eastern Airlines,

259 F. Supp. 745 (E. D. N. V. 1966) |

Port of New York Authority v. Hackensack Water

J BOE Ba (eRe nin nea 2

Stagg v. Municipal Court, 2 Cal. App. 3d 318, 82

O 4

Stoll, — Port of New Vork Authority,

61 Mise. 2d 20% 305 N. V. S. 2d 17 (Sup. Ct. 1969),

2d 743, 306 N. V. S. 2d 1025 (1969) 8

Trippe v. Port of New York Authority, 14 N.Y.2d

„„ r 2

’ _ Srarvres

Federal Aviation Act of 1958, Sec. 611 (added),

82 Stat. 395 (1968), 49 U.S.C. 61411. 5, 6,7,

10, 12. 13. 15. 16, 17

Noise Control Act of 1972, 86 Stat. 1234 (1972) ..7, 15,17

ai

- * — - 9 1

* : : 3 :

: N 23

-

ili

4. 2 PAGE

port Compact of 1921, Congressional Consent,

—U—- : OREUOES sn ccce sch tease pectsscccss 2

Laws of N.J., 1921, Ch. 151—Compact Authoriza-

ACESS SSE RRR SRR cc 2

Laws of wir. 1921, Ch. . 154—Compact Authoriza-

ESS f pellet hat Ge ge ee 2

MISCELLANEOUS

118 Cong. Rec. H. 1539 (daily ed. Feb. 29, 1972). 15

118 Cong. Rec. S. 17989 (daily ed. Oct. 13,1972) ... 17

118 Cong. Rec. S. 18007 (daily ed. Oct. 13, 1972) 15

H.R. Rep. No. 92-842, 92d Cong., 2d Sess. (1972) 16

§. Rep. No. 92-1160, 92d Cong., 2d Sess. (1972) .... 16,17

8. Rep. No. 1353, 90th Cong., 2d Sess. (1968)

—. 00s 7, 8, 9, 10, 11, 15

Senate Hearing Before Aviation Subcommittee of

The Committee on Commerce, 90th Cong., 2d Sess.,

ESTE ESOS RS COE lon ee 11, 12

$4 Fed, Reg. 18355-56 (Nov. 18, 1969) ............ 12, 13

5 Fed. Reg. 12555-56 (Aug. 6, 1970) ............. 14, 15

140 F. R., Part 93, Subpart K (Feb. 26, 1969) ...... 14

Executive Office of the President, Office of Science

and Technology, A Report of the Jet Aircraft

Panel —Alleviation of Jet Aircraft Noise

Near ar Airports os re A 10

of People to Exterior Aircraft Noise, Noise

» September, 1959, at 287 ................ 4

ir

The Port of New York Authority, Resolution of Com-

mitiee on Operations of Port Authority Commis-

sioners, July 12, 1951, pp. 22, 26

The Port Authority of New York and New Jersey,

Resolution of Board of Weener December

14, 1972, Exhibit A.

Jet Terma and Conditions for Use of Kennedy Inter-

national Airport, Exhibit B

1 Court of the United States

October Term, 1972

No. 71-1637

Vv

Crry or Bunsank, et al.,

Appellants,

vs.

LockxnnnD Am Tunxix AL, Inc., et al.,

Appellees.

“Aprzat From tae Umrrep States Covrr or Arrrals

3 ron THE NIWTH Cmcurr

st.

Vw

BRIEF OF THE PORT AUTHORITY OF NEW

YORK AND NEW JERSEY, AS AMICUS CURIAE.

Interest of Amicus Curiae

‘The Port Authority of New York and New Jersey which

mnot a party of an amicus curiae in the last aircraft

dase decided by this Court, Griggs v. Allegheny

Wily, 969 U.S. 84 (1962), herewith submits a brief,

Me. curiae, pursuant to Rule 42(4) of the Revised

ee this Court. This rule provides that consent to

brief need not be had when, like the instant brief,

to

ofa politica Nur of a bar

jorized law

The specific issue on this Aen. validity of s

local police power ordinance prohibiting the takeoff of jet

aircraft during nighttime hours from an airport serving

air carrier aireraft—is of. vital interest to your amicus

which operates the three commercial airports in the New

York-New Jersey metropolitan area, John F. Kennedy

International and LaGuardia Airports in New York and

Newark International. Airport in: New Jersey.

The Port Authority has, in its capacity as airport

operator, established its own restrictions on the use of jet

aircraft at its airporte—restrictions which it believes are

essential to the continued viability’ of its air terminal

system: These restrictions were the subject of testimony

in this case. Appellants’ Appendix, Volume I, pp. 300-308

The Port Authority is vitally concerned that any decision

which this Court might reach in the instant case does not

jeopardize, in any way, the validity of the Authority’s om

limitations on jet aircraft flights. The airlines which use

1 The present brief clearly falls within Rule 42(4) of the Revised

Rules of this Court. The Port Authority of New York and New

Jersey (formerly: The Port of New York. Authority) is a gover

mental agency of the States of New York and New Jersey, having

been created by the Port Compact of 1921 between them, consented

to by Congress, Ch. 154, Laws of N.Y., 1921; Ch. 151, Laws of

N. J., 1921; 42 Stat, 174 (1921). That the Authority is a political

subdivision of two States does not make it any less a political sub-

division of one State. Commissioner of Internal Rev. v. Shamberg's

Estate, 144 F. 2d 998 (2d Cir. 1944), cert. denied, 323 U.S. 72

(1948), See also Helvering v. Gerhardt, 304 U.S. 405 (1938);

Trippe vi Port of New York Authority, 14 N.Y. 2d 119 (1964);

5. New, York Authority v. Hackensack Water Co., 41 N.. N

ihe Cleat Calo Pere Acti i ten i

to file this brief on the, Authority's behalf by resolution of its Board

o Coinailseionere: Gsbed Besaiiber 14, 1972, a copy of which is at-

tached hereto as Exhibit K.

—

3

ite three commercial airports have never acknowledged the

Anthority’s power, as airport operator, to impose these

restrictions.on their jet aircraft and in a 1966 Federal

court action one airline unsuccessfully contested the Port

Authority’s right to enforce a temporary ban on the use

of get airoraft on a runway at LaGuardia Airport.’ That

idity:of the Authority’s own jet noise restrictions

might de jeopardized by a decision here can be seen from

ti following statement contained in the brief submitted

to this Court by the instant appellees in support of their

motion to affirm the Ninth Cireuit's decision: ‘‘. . . the

scope of the power of an airport proprietor to tinipoee

noise restrictions i is an unresolved issue Nad difficult

New York Authority v. Eastern Airlines, 259 F. Supp.

J. V. 1966).

* 5 seven years before the advent of commercial jet opera-

ms; the Port Authority, already concerned that the noise from

red aircraft would prove far more annoying to airport

ts than that produced by piston aircraft, adopted a regulation

ing that no jet aircraft may use its airports without permission.

) of Committee on Operations of Port Authority Commis-

, , 12, 1951, pp. 22, 26. As the record in this case shows,

we adoption of this regulation which led to the installation of

e suppressors on the first generation of jet aircraft used in com-

cameo Appellants’ Appendix, Volume I, pp. 306-7.

per 9 at that time no standard existed which measured a listener's

13 noise. The Port Authority retained the acoustical

Beranek and Newman of Cambridge, Massachusetts, to

ch a standard.

“The rd ultimately devised was termed “perceived noise

ves i rr of PNdB decibels” which, as described by Leo L.

a D. Kryter and Laymon N. Miller, “expresses in a

the measure of ‘noisiness’ that is implicit in a listener’s

560 he sounds of aircraft and yet it is measured on a scale

foughly comparable to the more familiar scales of physically-

2

1 .

the erncial importance of these restrictions to the Author.

ity’s financial viability: was underscored by this Courts

1962 holding in Griggs v. Allegheny County, 369 US, 84

That case held, over the dissent of Justices Black and

Frankfurter, that if, as the result of low altitude flights

of commercial aircraft operating from a publicly-owned

airport, an avigation easement is taken over nearby prop-

erty, it is the airport operator, and not the United States or

the airlines, who is the financially responsible party. We

respectfully submit that this decision has had a most unfor-

tunate impact on the aircraft noise problem since it placed

a function of frequency, i. e., the frequency spectrum of a sound. In

particular, the perceived noise level of a sound reflects the fact that

people judge higher frequencies to be more annoying or less accept-

able than lower frequencies when factors such as ‘meaning,’ novelty,

adaption, ¢tc., are held constant.” “Reaction of People to Exterior

Aircraft Noise,” Noise Control, September, 1959, at p. 287.

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applicable

unable to in

particular flight, permission for the flight does not exist.

the Port

Kennedy

5

al burden of such noise on the one segment of the

munity that is least able to obviate the financial

mences of aircraft noise exposure. At the same time,

ved from those segments of the industry who had the

p to take meaningful action to alleviate aircraft noise

rect financial incentive to do so. Nevertheless, until

burt chooses to overrule Griggs, an airport operator

2 with its holding. And, in our opinion, an inevi-

dorol of Griggs must be that such an operator

eases the right to protect itself from possible massive

gtary liability to airport neighbors by limiting or

srwise conditioning the use that certain types of aircraft

m make of its facilities. Otherwise, an impossible situ-

m would be created for an airport operator since, in

1 instances, only by restricting the use of jet aircraft

it avoid monetary liability to property owners ag-

iby aircraft noise.

1 * sover, only by such regulatory power can the local

fort operators set the stage for providing additional

i wort capacity, the development of which has, as a prac-

ial political matter, been virtually halted due to local con-

4 yer intolerable noise levels.

Summary of Argument

m is brief will make one point in two interrelated parts.

demonstrate that the legislative history of the noise

t amendments to the Federal Aviation Act of

a clear Congressional intent to preempt for

» Federal control the right of State and local

im snts to exercise their police powers in this area.

his same legislative history will show with equal

y that Congress did not intend to preclude State and

ernments, acting in their capacity as proprietors

Nation’s air terminal system, from taking action to

6

We cannot and will not take issue with Burbank

assertion that the Federal Government has failed to take

sufficient steps to alleviate severe aircraft noise pollution

Nor can we take issue with Burbank’s conclusion that this

failure is due in large measure to the refusal of Congres

to authorize the Federal Aviation Administration (FAA)

to take any action which might cause this Court to limit or

overrule its decision in Griggs. The legislative history of

the noise amendments to the Federal Aviation Act demon-

strates that the Port Authority fully agrees with Burbank’s

position on these two matters.

ARGUMENT

Congress’ intent, in the field of aircraft noise abate

ment, is to preempt for exclusive Federal Government

control all State and local police power regulation but

Until 1968, as the noise problem grew in intensity

throughout the nation, the FAA steadfastly maintained that

while it could cooperate with airport operators, airlines,

airline pilots and communities in establishing preferential

runways in the interest of noise relief, its power to do 80

was strictly incidental to its major function—flight safety

ion. And on the vital question of aircraft certifica-

tion, the FAA’s position, in effect, was that any air car.

rier aircraft which met its safety standards was entitled

to certification, irrespective of the aircraft’s noise char-

The change finally came only four years ago when, at be

urging of airport operators, the Executive Branch of the

Federal Government and

thers, Congress enacted an tir.

JJ ee ee ee ee

„

gutt ndl abatement statute in the form of an amendment

ip the Federal Aviation Act of 1958. Although neither

this amendment, nor the subsequently passed Noise Con-

trol Act of this year contains any express provision pre-

snpting the field of aircraft noise regulation, the legislative

sistory specifically defined the nature and scope of that

reemption. It makes clear, beyond any reasonable doubt,

thatthe City of Burbank’s prohibition on nighttime jet

takeoffs at the independently-owned Hollywood-Burbank

Airport falls squarely within the preempted area.

This Congressional intent is expressed in the legislative

history of the 1968 amendment (§ 611 of the Federal Avia-

tion Act) in which the FAA was given, for the first time,

express responsibilities and authority in the area of air-

The 1968 amendment provides:

N

Va

craft noise and sonic boom and shall prescribe and

7

amend such rules and regulations as he may find

necessary to provide for the control and abatement

4

be

4 © of aircraft noise and sonic boom... .’’ 4 611, Federal

Aviation Act; 49 U.S.C. § 1431 (a)

a „ Report of the Senate Commerce Committee on

N. 3400 would merely expand the Federal Gov-

ment’s role in a field already preempted. It

not 1 this preemption. State and local

overnments will remain unable to use their police

nt portion of the Senate Report is attached hereto

owers to control aircraft noise by regulating’ th

of aircraft.” S. Rep. No. 2 9th Cn,

Sess. at p. 6 (1968). See Exhibit ©

The Committee’s conclusion follows a discussion of Judge

Dooling's holding in American Airlines, et al, Port of New

York Authority, et al. v. Town of Hempstead, 272 F. Supp.

226 (E. D. N. T. 1967), aff d, 398 F. 2d 369 (2d Cir. 1968), cert

denied, 393 U.S. 1017 (1969), which the Committee used tp

define the nature and scope of Federal preemption in this

field. The Senate Report points out that:

„The courts have held that the Federal Govern.

ment presently preempts the field of noise regulation

insofar as it involves controlling the flight of =

craft. Local noise control legislation limiti

permissible noise level of all overfiying aire 15

recently been struck down because it conflicted with

Federal regulation of air traffic. American Airlines v.

Town o “ stead, 272 F. Supp. 226 (U. 8. D. C,

E. D., N. L., ). The court said, at 231, ‘The legis.

lation o ae in an area committed to Federal

noise limiting rules operating as do those

of the ordinance must come from a Federal soure

... 8. Rep., p. 6, see Exhibit C.

The Hempstead case involved an attempt by a tom

adjoining Kennedy International Airport to use its police

power to protect its citizens from noise disturbance by pro-

hibiting the operation of any mechanism or devieé, including

aircraft, which created a noise within the town in excess of

certain specified daytime and nighttime limits. Enforce

ment of the ordinance would have prevented the use of five

runways at Kennedy Airport. Judge Dooling determined

that the ordinance was an indirect attempt to exclude air-

craft from the lower reaches of the navigable airspace.

He pointed out that

„to exclude the aircraft noise from the Town is to

exclude the aircraft; to set a ground level decibel

limit for the aircraft is aid to exclude it from

9

1 dhe lower air that it cannot use without exceeding

te decibel limit. 272 F. Supp. 226, 230.

He further found that:

the ordinance does not forbid noise except by for-

_ bidding flights ...’’ Id.

is the Senate Report states, Judge Dooling concluded that

e Hen ordinance ‘‘operates in an area committed

care, and noise limiting rules operating as do

gee of the ordinance must come from a Federal source.“

11e Report, p. 6. He therefore held that the ordinance

invaded a field preempted by the Federal Government.“

e Burbank ordinance, like the Hempstead ordinance,

_attempt—direct rather than indirect—to use local

lite power to exclude aircraft from the navigable air-

‘and thus to regulate the flight of aircraft. The Senate

specifically states that Congress has preempted

But Congress did not intend entirely to prevent State

u deal governments from acting in this area. The

the proposed legislation will not affect the rights

a State or local public agency, as the proprietor of

u airport, from issuing regulations or establishing

‘requirements as to the permissible level of noise

which can be created by aircraft using the airport.

urport owners acting as proprietors can presently

deny the use of their airports to aircraft on the basis

noise considerations so — — such exclusion is

discriminatory.’’ Senate Report, p. 6.

ee Dooling also held that the ordinance conflicted with valid

e Federal regulations and was an unconstitutional burden

SS

me 272 F. Supp. 226, 235-236. On appeal, the Second

“amt upheld Judge Dooling’s decision on the ground of conflict

Mut teaching the questions of preemption and burden. 398 F. 2d

10

The right of an airport proprietor to act in this field vn

first claimed by the Port Authority to support its jet noi

restrictions. As my predecessor stated in 1966 before

White House panel on the noise problem: .

Port Authority restrictions are not based m

police power consi erations but rather upon th

inherent right of a landowner to control, either by

contract or otherwise, the activities of those who ue

his facilities—activities for which . . the airport

operator might be held liable to property owners in

adjacent communities. It seems clear that the Port

Authority possesses the power to require its airlin

tenants to refrain from using its facilities in sucha

way as to subject it to money damage claims brought

by airport neighbors or otherwise to engage in

activities that will prove detrimental to its good

name or to that of its airports.’’ *

The Senate Report gives the following rationale fo

continued participation by airport operators:

„Just as an airport owner is responsible for de

SSS

responsi or 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 runways. Like

wise, the Federal Government is in no position to

require an airport to accept service by ‘noisier air.

eraft, and for that purpose to obtain additional

Sao sitpech anehcuadt tas stave ies eliing

owner it is

to obtain the service. In dealing with this issue, te

Federal. Government should not substitute its judg-

ment for that of the States or elements of local gov-

ernment: who, for the most part, own and operate

EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE

OF SCIENCE AND TECHNOLOGY, A Report of the Jet Air

eraft Noise Panel—Alleviation of Jet Aircraft Noise Near Airports,

p. 136 (1966). This Report is part of the legislative history of the

1968 Noise * 7ä Amendment. See S. Rep. No. 1353, pp

2, 10. N |

| |

11

our Nation's airports. The proposed legislation is

not designed to do this and will not prevent airport

proprietors from excluding any aircraft on the basis

7 considerations.’’ Senate Report, p. 7.

In other words, the Senate Committee not only agreed

ith-the Port Authority’s contention that there is a legal

ion between local ordinances and a landlord’s re-

strigtions but it was happy to do so for two reasons. First,

the record shows that the Senate Committee was worried

lest the expansion of the Federal Government’s regulatory

pers. to include noise certification would affect its legal

ind financi Jiability, possibly leading to an overturning of

“‘Bosond, the Committee acknowledged that an airport

proprietor could control aircraft noise by making a deter-

on not to expand or improve an existing airport for

of accommodating noisier jets. It knew that

reaching such a decision the airport proprietor must bal-

une noise costs against the need for air commerce. It

further recognized that noise costs (additional land acquisi-

nor avigation easements) could be minimized by air-

restrictions designed to make the noisy jet more com-

ible with the neighboring community. Lastly, it faced

pt the fact that the attempts by airport operators to

new jetports were increasingly blocked by citizen

td questions. The first was:

; Wim enactment of this legislation causing direct Federal

gement in the field of aircraft noise abatement and control

tase the legal liability of the Federal Government for damage

damage claims caused by aircraft noise or sonic boom?”

+ be sr of aircraft noise and sonic boom?”

S. 707 and H.R. 3400, Before Aviation Subcommittee of

ittee on Commerce, United States Senate, 90th —

p. 28-29 (1968).

12

concern over aircraft noise.“ The Senate Committee there

fore concluded that the growth of air commerce would be

best served by giving specific sanction to the airport open.

tor’s right to restrict the use of its air terminals for noise

abatement purposes, ;

If, however, this Court should determine that an airport

operator has no such right, then we submit that Griggs v

Allegheny County must be overruled since such a right is

the only way the airport operator can guard against the

monetary liability imposed on it by that decision. We do

not mean to imply that this would be the only situation that

would call for an overrulings of Griggs. That case dealt

solely with piston aircraft and the record there failed to

reflect the magnitude of Federal Government and airline

involvement in, and responsibility for, the aircraft noise

problem in the age of jet airliners. Appellants correctly

point out that overruling Griggs would ‘‘stimulate the Fed.

eral Aviation Administration and the airlines into taking

more appropriate action in the areas of jet aircraft noix

abatement’’, Appellants’ brief, pp. 77-78.

B. The Contemporaneous Construction of the 1968 Air

craft Noise Abatement Amendment

The preamble to the first regulation issued by the FAA

under the 1968 amendment contains a thorough discussion

® Senate Hearing, p. 43. See also American Airlines, et al., Port

of New York Authority, et al. v. Town of Hempstead, 272 F. Sup.

226, 228 (E.D.N.Y. 1966) and Appendix A“ to this Brief,

concerning the Port Authority’s unsuccessful attempts to locate 2

, 208, 305 N.Y.S. 2d 17, 19 (Sup. Ct. 1969) aff'd, 3

P. 2d 892, 301 N. V. S. 2d 943 (ist Dept. 1969), motion for leave

denied

R 13

pe ae

ms : geope of Federal preemption in the field of noise

baten 14 C. F. R., Part 36. This contemporaneous

sonstruction of the 1968 amendment explained that:

“Responsibility for determining the permissible

* “noise levels for aircraft using an airport remains

with the proprietor of that airport. The noise limits

Shs i in Part 36 ... are not intended to sub-

Stitute federally determined noise levels for those

more ‘restrictive limits determined to be necessary

by individual airport proprietors in to the

~~ “locally determined desire for quiet the locally

| determined need for the benefits of air commerce.

This limitation on the scope of Part 36 is required

for consistency with the responsibilities placed upon

ttmhe airport proprietor = the U.S. Supreme Court

in Griggs v. A gheny County, 369 U.S. 84 (1962).

, Consistent with this limited scope, this amendment

- specifies that the Federal Aviation Administration

make no determination, under Part 36, on the accept-

ability of the prescribed noise levels in any specific

airport environment (see $§ 36.5 and 36.1581 (a)).

„the FAA, in response to the Griggs decision

(see above), recognizes the right of State or local

public agencies, as the proprietors of airports, to

issue nondiscriminatory restrictions with respect to

; the permissible level of noise that can be created by

eee — 2 their airports.“ 34 Federal Register

13355-18356, November 18, 1969.

However, the preamble cautioned that the FAA:

. 4. does not recognize any right of any State or

local government ageney that is not an airport pro-

Be prietor to issue any regulation controlling the flight

ol aireraft for noise purposes. Id. at 18356,

oh deed, four months earlier the Acting FAA Admin-

Hor had given the very same construction to the 1968

ndment in denying a petition for rule making. In re

FAA Regulatory Docket, No. 9071, July 10,

14

1969, Appellants’ brief, App. 4-13. The petition asked the

FAA to adopt a rule prescribing time limitations for

turbojet aircraft operating at Santa Monica, California

Municipal Airport similar to those imposed by that City's

nighttime curfew ordinance which had been declared in.

valid by a state court decision.“ The Administrator first

pointed out that:

„The FAA agrees that nondiscriminatory time re.

strictions may be an effective and appropriate means

of adapting aircraft noise to the needs of local com-

munities.“ Appellants’ brief, App. 7.

He then addressed himself to the question of which level

of government has the power to so regulate or restrict air.

craft operations?’’ Appellants’ brief, App. 7. Based

upon a complete review of the legislative history of the

1968 amendment, the Administrator concluded:

„While States may not use their police power

to regulate in any way flight of aircraft for noise

purposes, State and local governmental proprietors

of airports may deny the use of their airports to air.

craft on the basis of noise considerations so long as

such exclusion is nondiscriminatory.’’ Appellants’

brief, App. 10.

A year later the FAA again recognized the authority of

an airport proprietor to regulate in the aircraft noise field

when it issued its Advance Notice of Proposed Rulemaking |

(ANPRM) on Civil Supersonic Aircraft Noise Type Certi-

fication Standards which would involve amending 14 C. FR.,

o That decision was reversed on appeal and the right of the City

of Santa Monica, proprietor of the airport, to impose a curfew

was upheld. Stagg v. The Municipal Court, 2 Cal. App. 3d, 318,

82-Cal..R.P.TR. 578 (1969).

10 It is interesting to note that the Administrator had issued the

High Density Traffic Airports Rule earlier that year. 14 CFR,

Part 93, Subpart K, Feb. 26, 1969. Obviously, he saw no possible

conflict between that rule and an ariport proprietor’s noise restric

tions.

ye

15

86, 35 Fed. Reg. pp. 12555-56, August 6, 1970. The

ne requested comments directed to the

he develppment of methods to be applied to

ensure that um use of the regulatory authority

Wee 9611 is e, with respect to civil supersonic

aireraft, witho Federal interference with the right

of States or local public agencies, as the proprietors

of airports, to issue regplations or establish require-

ments as to the permissible level of noise which can

be created by aircraft 8.77 their airports (see

Senate Report 1353, pp. 6, 7).“ Id.

€ The Legislative History of the Aircraft Noise Section of

“the 1972 Noise Control Act

_ Contrary to the contention made by the Attorney Gen-

eral of California, appearing herein amicus curiae, Supp.

Brief, pp. 14-16, the legislative history of the Noise Control

Act of 1972 only serves to reaffirm the fact that Congress

intended to preempt State and local police power in the

field of aircraft noise emissions but to permit regulation by

airport proprietors." Section 7 of the 1972 Act, dealing

with aircraft noise emissions, like the 1968 amendment

11), contains no express preemption provision. The

f of ‘the Attorney General of California erroneously

atgues the absence of such an express provision in

Section. 7 and the inclusion of such a provision in a similar

which originally passed the Senate indicates that Con-

inter alia, the Administrator of the Environmental Pro-

. FAA proposed regulations which

inistrator determines are necessary to W the Scr

Ads 7(b) of this Act amends the 1968 statute (§ 611)

W require,

16

gress consciously determined not to preempt this field, pp

14-16. The fact, however, is that both the Senate and Hons

Committees which considered the respective noise contr

bills included in their Reports unequivocal statements 1

suring all parties concerned that the bills would make 1

change in the existing preemption rule.

Thus, the House Report to accompany H.R. 110%,

written with full knowledge of the legislative history and

eontemporaneous construction of the 1968 amendment

(§ 611), states that:

„No provision of the bill is intended to alter in

any 2 the relationship between the authority of

the Federal Government and that of the State and

local governments that existed with respect to mat-

ters covered by section 611 of the Federal Aviation

Act of. 1958 prior to the enactment of the bill.”

10 07 * No. 92-842, 92nd Cong. 2d Seas., 5

Senate Bill 3342, as reported out by the Senate Committee

on Public Works, contained the following preemption

section :

„Sec. 506. No State or political subdivision

thereof may adopt or attempt to enforce any stand-

ard res noise emissions from any aircraft or

engine unless such standard is identical to

a standard applicable to such aircraft under this

The Report of the Senate Committee on Public Works on

8.3842, as above amended, states in clear and unequivocal

terms that:

no provision of in

to yr tag \the relationship between the

authority of Federal government and that of

a f ey

17

State and local 22 — that existed with respect

to matters covered by section 611 of the Federal

2 Act of 1958 prior to the enactment of the

dil. Senate Report No. 92-1160, 92 Cong. 2d Sess.,

pp. 10-11 (1972).

. 8.3342 was subsequently changed by an amendment

poh by Senator Tunney and therefore the final version,

. by the Senate, but not the House, contained a new

$06 (renumbered 6 505). The new § 505 which the Senate

passed provided:

ay „Sec. 505. No State or political subdivision

‘thereof may adopt or enforce any standard respect-

ied noise emissions from any aircraft or engine

Treol. .

At the time he sponsored the amendment, Senator

Tunney explained:

“There was no intention in the committee bill to

alter the relative power of the Federal Govern-

ment, State and local government, and ai i opera-

tor, over the control of aircraft noise. s amend-

ment would also, retain the same powers for all

12 1 15750 118 N Rec. S. 17989 (daily ed. Oct.

As previously noted; although the Noise Control Act of

1972, which was finally passed, contains no express aircraft

noise preemption provision, Congress’ obvious intent con-

cerning preemption is crystal clear, to wit, there should be

change in the relative powers among (a) the Federal

3 e (b) State and local governments, and (e) air-

ort operators regarding the regulation of aircraft noise

fr that area existed prior to its adoption. Categorical

ations to this effect are contained in both the relevant

Sen: anil House Committee Reports which we have just

Wied. No contrary statement is to be found in the entire

ive history of the act.

18

cCoNcLUSs ION

In light of the foregoing, we respectfully submit that

the decision below should be affirmed since Congress in.

tended, in the-field of aircraft noise abatement, to preempt

for exclusive Federal Government control all local police

power regulations such as that enacted by the City of Br.

bank which is the subject of this appeal. At the same time,

Congress desired, as we have shown, that airport operators

possess the right to impose nondiscriminatory restrictions

on the aircraft users of their facilities in the interest of

noise abatement. And, if for any reason, this Court con-

clades that such right does not exist, then we believe that

Griggs v. Allegheny Co. must be overruled.

Patrick J. FALVEY .

General Counsel, The Port Authority of

New York and. New Jersey,

Amicus Curiae

and P. O. Address

111 Eighth Avenue

New York, New York 10011

Tel. (212) 620-7380

19

Proof of Service

a Parton J. Fatvey, a member of the Bar of the

Court of the United States, and General Counsel

of The Port Authority of New York and New Jersey,

herein, Amicus Curiae, hereby certify that on the

ind day of December, 1972, I served copies of the fore-

brief on counsel for Appellants, counsel for Appellees,

and counsel for the State of ‘California, Amicus Curiae, by

mailing three copies thereof in a duly addressed envelope,

with air mail * prepaid, to each of the following in

this cause:

Stunt, Gortiox, Esq.

City Attorney

Counsel for all Appellants except Samuel Gorlick

275 East Olive Avenue

Burbank, California 91502

Bronarp L. Sree, In., Esq.

Counsel for Appellant Samuel Gorlick

275 East Olive Avenue

Burbank, California 91502

Warren CuristopHer, Esq.

Rar W. Dav, Esq. and

Micuagt D. Zommerman, Esq.

Counsel for Appellees

611 West Sixth Street

Los Angeles, California 90017

yx J. Youncsr, Esq.

Attorney General of the State of California,

Amicus Curiae

600 State Building

217 West First Street

Los Angeles, California 90012

/s/ Parstox J. Fatvey

Patrick J. Falvey

la

EXHIBIT “A”

Resolution adopted by Board of Commissioners of The Port

Authority of New York and New Jersey at its meeting of

| December 14, 1972 (appearing at pp. 495-496 of the Of-

cial Minutes of that date).

Lockheed Air Terminal Inc. v. City of Burbank, Inc.-Filing

of Brief Amicus Curiae :

It was reported that the United States Supreme Court

on October 10, 1972, noted probable jurisdiction in Lockheed

Air Terminal v. City of Burbank, Inc., a case involving the

constitutionality of an ordinance of the City of Burbank,

California, prohibiting the departure of jet aircraft from

the Hollywood-Burbank Airport between 11:00 p.m. and

700 am. Hollywood-Burbank Airport is owned and opera-

ted by Lockheed Air Terminal, Inc., a private corporation

but is utilized by regularly scheduled airlines. The Air

Transport Association of America joined Lockheed in chal-

lenging the eonstitutionality of the ordinance.

The case comes before the nation’s highest court on

appeal from a judgment of the United States Court of

Appeals for the Ninth Cireuit. That Court ruled that the

Burbank ordinance is invalid under the supremacy clause of

the United States Constitution because it (1) invades a field

preempted by Congress for exclusive regulation by the

Federal Government, and (2) conflicts with a previously

euacted: Federal Aviation Administration runway prefer-

ene Tule for nighttime use of the airport.

The ultimate resolution of the issues in the Burbank case

is important to the Port Authority for two reasons. First,

bun has been increasing pressure in the communities sur.

raunding Port Authority airports for the establishment of

uighttime curfews. This community pressure in large part

Waa. for the pending suit brought by the At-

1

Ni

2a

Eshibst 4

torney General of New York against the Port Authority u

the air carriers using the New York airports, which a

addition to other relief, seeks to curtail flights ‘dari

evening hours at these airports. The Port Authority

long been convinced that such night curfews would 1

versely affect commerce and industry i in the Port of Ne

York.

Second, although the Port Authority supports the hall

ing of the Court of Appeals for the Ninth Circuit, its

General Counsel’s opinion that the sweeping language wa

by that Court to invalidate the ordinance will subsequent)

be employed by the airlines to strike down noise restriction

imposed by airport operators. The airlines have never en

ceded: the validity of Port Authority restrictions which u

one form or another have been in effect since 1951 and har

advised the United States Supreme Court in this proceeding

that the power of an airport proprietor in this field remain

an unsolved issue involving difficult constitutional, state

tory and contractual issues. It is essential that the Port

Authority's right to bar or restrict aircraft from its u

ports remain unimpaired in order that it can protect airport

neighbors from undue noise and at the same time limit th

Port Authority’s legal responsibility and financial liability.

This is particularly pertinent in view of the coming entrant

into service of supersonic aircraft, the noise emissions ul

which are not limited in any way by Federal law or regu

tion. In addition, it is conceivable that the Port Authority

may find it necessagy to impose stricter noise restriction,

including some type of nighttime restrictions, to keep its

air terminal system viable. The Port Authority’s failure u

develop u fourth jetport was due in large measure to citizen

concern with aircraft noise and the resultant lack of airport

capacity was a partial reason for the imposition of hourly

quotas on aircraft movements at Port Authority airports

3

Exhibit 4

3 It i is recommended, therefore, that the Board authorize

be filing of a brief amicus curiae with the Supreme Court

rt of Lockheed’s position that Section 20-32.1 of

5 Burbank, California ordinance prohibiting pure jets

taking off from Hollywood-Burbank Airport between

1:00 p.m. and 7:00 a.m. is invalid under the supremacy

a because the City is purporting to exercise its police

power in an area which has been preempted by the Federal

Government and in so doing, protect the integrity of the

rt Authority’s current noise restrictions for jet aircraft

as its right to impose additional limits, should this

to keep the Port Authority air terminal system

Whereupon, the following resolution was unanimously

ound, that General Counsel be and he hereby is

thorized, on behalf ofsthe Port Authority, to file a brief

deus curiae with the United States Supreme Court in the

» of Lockheed Air Terminal, Inc. v. City of Burbank,

Tea support of the airport and airlines position that

Sestion 20-32.1 of the Burbank ordinance prohibiting pure

ee taking off from Hollywood. Burbank Airport

0 stweer 11:00 p.m. and 7:00 am. is invalid under the

mn macy clause because the City is purporting to exercise

iif police power in an area which has been preempted by

Fec leral Government and in so doing, protect the integ-

if the Port Authority’s current noise restrictions for

rcraft as well as its right to impose additional limits,

this be necessary, to keep the Port ev air

system viable.

—

8a

EXHIBIT C“

Excerpt from Senate Report No. 1353,

90th Congress, Second Session (1968)

The bill is an amendment to a statute describing t

powers and duties of the Federal Government with resped

to air commerce. As indicated earlier in this report, certa

actions by State and local public agencies, such as zoning)

assure compatible land use, are a necessary part of th

total attack on aircraft noise. In this connection, the que

tion is raised whether this bill adds or subtracts anythin

from the powers of State or local governments. It is m

the intent of the committee in recommending this legislatia

to effect any change in the existing apportionment of por

ers between the Federal and State and local government

In this regard, we concur in the following views set fork

by the Secretary in his letter to the committee of June 2

1968 :

The courts have held that the Federal Government pre

ently preempts the field of noise regulation insofar asi

involves controlling the flight of aircraft. Local noise on

trol legislation limiting the permissible noise level of il

overflying aircraft has recently been struck down becaus

it conflicted with Federal regulation of air traffic. America

Airlines v. Town of Hempstead, 272 F. Supp. 226 (U.S. DC

E. D., N. V., 1966). The court said, at 231, The legislatio

operates in an area committed to Federal care, and nois

limiting rules opérating as do those of the ordinance mu

come from a Federal source. H.R. 3400 would mere

expand the Federal Government’s role in a field alread

preempted. It would not change this preemption. Stu

and local governments will remain unable to use their poli

powers to control aircraft noise by regulating the flight

aircraft.

— —

Ta

Exhibit .O.

However, the proposed legislation will not affect the

richts of a State or local public agency, as the proprietor

of an airport, from issuing regulations or establishing re-

quirements as to the permissible level of noise which can be

created by aircraft using the airport. Airport owners acting

as proprietors can presently deny the use of their airports

to airoraft on the basis of noise considerations so long as

such exelusion is nondiscriminatory.

Just as an airport owner is responsible for deciding

how long the runways will be, so is the owner responsible

for obtaining noise easements necessary to permit the land-

ing 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 run-

ways. 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 deal-

ing with this issue, the Federal Government should not sub-

stitute 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 de-

signed to do this and will not prevent airport proprietors

from exeluding any aircraft on the basis of noise consid-

Of course, the authority of units of local government

to control the effects of aircraft noise through the exercise

of land use planning and zoning powers is not diminished

by the bill.

Finally, since the flight of aircraft has been preempted

by the Federal Government, State and local governments

an presently exercise no control over sonic boom. The bill

makes no change in this regard.