Appellees Brief — Burbank v. Lockheed Air Terminal, Inc.

Supreme Court brief1973

Ask Donna

What actually matters in this document.

Text

Supreme Court of the United States

October Term, 1972

No. 71-1637

Tas Crry or Bunnaxx, et al.,

Appellants,

vs.

Looxexep Am TERMINAL, Ino., et al., 8

Appellees.

on Appeal from the United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE APPELLEES

Warren CHRIsTOPHER

Rates W. Dav

Micuazt D. Zrmmmenman

611 West Sixth Street

Los Angeles, California 90017

Attorneys for Appellees

Of Counsel:

OMatvexy & Myzzs

Kmruanp & Paoxarp

(Dome of L.A, Financial Printers, Los Angeles. Phone (213) 748-0651

TABLE OF CONTENTS

Page

VVV iv

Opinions Belo ꝶ h.... 1

Questions Presente 2

Constitutional and Statutory Provisions Involved 2

STATEMENT PPP 5

1. Nature of the Case and Prior Proceedings 5

% %%% „„ b 6

a. The Hollywood-Burbank Airport 7

b. The Curfew Ordinance .................. 10

e. The Scope of Federal Regulation 10

d. The Efficient Use of Airspace 11

e. Noise Abatement Regulations ............ 12

f. Effect on Commerce ..................... 14

8. Decision of the District Court 16

4. Decision of the Court of Appeals 17

SUMMARY OF ARGUMENT .................. 18

SE Ce ee 18

r ĩ ˙ o—A———. 19

a pets A enw neeee ce 21

II. Commerce Clauses 21

I ĩ ² ˙ AAA 23

r,, /ĩ ĩ ⅛ ó—— ̃ ˙¹uĩ· „

L The Federal Government Has Preempted

the Management of Airspace and the Reg-

ulation of Aircraft Operations and Air-

rr Png i aka aoe Kae 25

A. The Federal Aviation Act of 1958 26

Pag

B. The 1968 Noise Abatement Amendment %

C. The Scheme of Federal Regulation 8

1. Regulations for Noise Abatement . #

9. Regulation for Efficient Use of Nav-

igable Airspace %

D. The Noise Control Aet of 1972 N

1. The New Statute N

2. Legislative History of the 1972 Act 40

3. Appellants’ Views on the New Act. 8

E. The Tests for Federal Preemption Are

Wally ht... 4]

1. Standards for Preemption ......-. 4]

2. Fulfillment of the Tests 4g

F. Prior Decisions Supporting the Hold-

ing of Federal Preemption ......----- 53

1. Lower Federal Decisions 53

2. State Court Decisions 57

3. The Supreme Court Precedents

II. The Burbank Curfew Ordinance is in Con-

flict With Federal Lac

A. The Curfew Ordinance Conflicts With

the FAA Nighttime Noise Abatement

a i pax coer betes cee ce

B. The Curfew Ordinance Interferes With

the Use of Navigable Airspace

C. The Curfew Ordinance Restricts Fed-

erally Certificated Richts

Page

III. The Burbank Curfew Ordinance Violates

A. The District Court Properly Found

That a Single Authority Is Required

for Airspace Management and Regula-

tion of Aircraft Operations and Air-

The District Court Properly Found the

Burbank Ordinance To Impede Sub-

stantially the Free Flow of Interstate

CONCLUSION

Noise Control Act of 1972, Public Law 92-574, 86 Stat.

1234, 92nd Congress, H.R. 11021, October 27, 1972.

—iv—

CITATIONS

Cases

Page

Aircraft Owners and Pilots Association v. Volpe,

Civil Action No. 927-69, D.D.C. (unreported) .... 37

All American Airways, Inc. v. Village of Cedarhurst,

106 F. Supp. 521 (E. D. N. V. 1952), af d, 201 F. 2d

273 (2d Cir. 1953)))))) tr 76, 79

Allegheny Airlines, Inc., v. Village of Cedarhurst,

132 F. Supp. 871 (E. D. N. V. 1955), af d, 238 F. 2d

G19 (d Cir. 105686))))))))))ꝗ 57

American Airlines, Inc. v. City of Audubon Park,

Kentucky, 297 F. Supp. 207 (W. D. Ky. 1968), af d,

407 F. 2d 1306 (6th Cir. 1969), cert. denied, 396 U.S.

%%/%/ / ²˙ 00 53, 75, 79

American Airlines, Inc., v. Town of Hempstead, 272

F. Supp. 226 (E. D. N. J. 1967), af d, 398 F. 2d 369

(2d Cir. 1968), cert. denied, 393 U.S. 1017 (1969)

oe ae ee aes ey 31, 34, 53, 55, 75, 77, 19

Bibb v. Navajo Freight Lines, 359 U.S. 520 (1959) 72, 79

Braniff Airways v. Nebraska State Board, 347 U.S.

Oh FOUND yas so rn ES EG tno oot 63

California v. Zook, 336 U. S. 725 D 48

Campbell v. Hussey, 368 U.S. 297 (196117 48

Castle v. Hayes Freight Lines, Inc., 348 U.S. 61

83 P Cone eee et ve 8 69

Chicago & Southern Air Lines, Inc. v. Waterman

Steamship Corp., 333 U.S. 103 . 4

City of Chicago v. Atchison, Topeka & Santa Fe Rail-

way, 357 U.S. 77 (1958) ... C 50

Colorado Anti-Discrimination Comm'n v. Continen- 855

tal Air Lines, Inc., 372 U.S. 714 (1963) 62

Edwards v. California, 314 U.S. 160 (1941) 75

Evansville-Vanderburgh Airport Authority Dist. v.

Delta Airlines, Inc., 405 U.S. 707 (1972) ........ 63

Fitzgerald v. Pan American World Airways, Inc.,

229 F.2d 499 (2d Cir. 1956) .................... 29

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) .... 72

Griggs v. Allegheny County, 369 U.S. 84 (1962) 32, 62

Head v. New Mexico Board, 374 U.S. 424 (1963) 48, 63

Hines v. Davidowitz, 312 U.S. 52 (1941) .......... 65

Hood & Sons v. DuMond, 336 U.S. 525 (1949) 77

Huron Portland Cement Co. v. Detroit, 362 U.S. 440

%%0%ÿ%%õ AA cere cceclecece 60

Kelly v. Washington, 302 U.S. 1 (1937) 74

Lockheed Air Terminal, Inc. v. City of Burbank, 318

F. Supp. 914 (C. D. Cal. 1970, 4d, 457 F. 2d 667

// ˙¾²˙ ——«V er 1

Loma Portal Civic Club v. American Airlines, Inc.,

61 Cal. 2d 582, 39 Cal. Rptr. 708 (1964) 59

Minnesota v. Barber, 136 U.S. 313 (1890) .......... 77

Mississippi Railroad Comm’n v. Illinois Central

RR, 203 U.S. 335 (1906) 77

Morgan v. Virginia, 328 U.S. 373 (1946) 71, 72

Opinion of the Justices, —— Mass., 271 N. E. 2d

* VVV 33, 57

tn vania R. Co. v. Pica Coal Min. Co., 237

8 121 MN ne Gro A

Page

Perez v. Campbell, 402 U.S. 637 (1971) .. 17, 21, 33, 6

Porter v. Southeastern Aviation, Inc., 191 F. Supp.

42 (M.D. Tenn. 1961· eee eee %

Railroad Company v. Husen, 95 U.S. 465 (1877) ... 1

Rice v. Chicago Board of Trade, 331 U.S. 247 (1947) &

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

Pw. 20, 47, 64

Sears Roebuck & Co. v. Stiffel Co., 376 U.S. 225

TW geecieathenne- res 64

South Carolina Highway Dept. v. Barnwell Bros.,

%% VMVm̃ꝓqðꝛ·]V?ĩ n

Southern Pacific Co. v. Arizona, 325 U.S. 761, (1945)

JJ hee ay ada a 22, 71, 75, 78

Sperry v. Florida ex. rel. Florida Bar, 373 U.S. 379

P77)! 68

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

— ee eee 58

Teamsters Local v. Lucas Flour Co., 369 U.S. 95

Bs ³ hr 7˙— '—w 4*

42 (1907) ee en gr aa ree Wat ee en's ob oe 29

Township of Hanover v. Town of Morristown, 108

N.J. Super. 461, 261 A.2d 692 (1969) 58

United States v. City of New Haven, 447 F.2d 972

(2d Cir. 1971) EDO ESS PSO Ob 56, 75

United States v. Town of Morristown, Civil No. 1214

TR oe Ch ʃ!k 59

Virginians for Dulles v. Volpe, 344 F. Supp. 573

(E. D. Va. 1972), appeal pending 59, 62

United States Constitution

Statutory Materials

Airport and Airway Development Act of 1970,

Federal Airport Act of 1946, ch. 251,

60 Stat. 170

Federal Aviation Act of 1958, 49 U.S.C.

1430(a) (5)

1430(a) (8)

Federal Aviation Act of 1958, as amended by

Noise Control Act of 1972

§ 611(b)

HR. 11021, 92d Cong., 2d Sess............... 40, 42, 44

Judicial Code, 28 U.S.C. § 1254(2)

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

86 Stat. 1234

§2(a) (3)

Postal Reorganization Act, 39 U. S. C. §$ 101(f)

8, 3342, 92d Cong., 2d Sess.

§502(a), Comm. Print No. 6

Congressional Materials

HR. Rur. No. 92-842, 92d Cong., 2d Sess. (1972) . 44

8. Rar. No. 1811, 85th Cong., 2d Sess. (1958) 26, 27, 36, 51

8 Rar. No. 1353, 90th Cong., 2d Sess. (1968) 19, 32

Rar. No. 92-1160, 92d Con., 2d Sess. (1972) a 45

iigressional Debates

ww X a

October 17, 1972, House ...................

October 18, 1972, Senate

de Tn ee

8 Weekly Comp. of Pres. Docs. 1582

(Oct. 28, 7 ²˙ . mee

Administrative Proceedings

Fort Worth Investigation,

9 [%%% TTT

Pacific Northwest-California Investigation,

C.A.B. Docket No. 18884 (May 12, 1970) ........

Petition of Dreifus, FAA Regulatory Docket

— ÄVD f.., ˙m-m

Regulations and Orders

—. , vere ccc eces 14, 35, 50

/ ůàA ˙ w 34

Mick oo. ils ĩ ͤ—M— ies coke 34

JfſJ7)h i VIS Maer 'e isp a 5. 13, 66

77h k 34

// ĩ˙¾ SOREN peg earn ae 36

FAA Order BUR 7100.5B (Sept. 4, 1969) 18, 21,65.

ee ee i eee... 29, 53, 61

ED nage ae en ee 29

OG We MN . ie... 14, 3

RP —U—„ Ä ce eed 14

— . 14, 35, 50

Secondary Material

Civil Aeronautics Board Handbook of Airline

Statistics, Tables 15, 27 and 40 (1971) .......... 23

IN THE

Supreme Court of the United States

October Term, 1972

No. 71-1637

Tas Crry or Bunnaxk, et al,

Appellants,

v8.

Looxuzep Am Tznminat, Ixo., et al.,

Appellees.

On Appeal from the United States Court of Appeals

for the Ninth Circuit

BRIEF OF THE APPELLEES

OPINIONS BELOW

The opinion of the court of appeals, reported in 457

F.2d at 667, is set forth at A. 410. The district court

opinion, reported in 318 F. Supp. at 914, is reproduced

at A. 341. The findings of fact and conclusions of law

Pad by the district court are reproduced at A. 375.

QUESTIONS PRESENTED

1. Was the court of appeals correct in holding that

the Burbank curfew ordinance is invalid under the Su.

premacy Clause because the city is purporting to exer-

cise its police power in an area which has been preempted

by the federal government?

2. Was the court of appeals correct in holding that the

Burbank curfew ordinance is invalid under the Suprem-

acy Clause because the ordinance is in conflict with an

order of the Federal Aviation Administration applicable

to nighttime flight operations at the Hollywood-Burbank

Airport and with the federal statutory right of free

transit through the navigable airspace?

3. Does the Burbank ordinance constitute an invalid

attempt to regulate a phase of the national commerce

which, because of its speed, volume, and complexity,

must be regulated by a single authority?

4. Does the burden imposed bn interstate commerce

by enfgrcement of a local curfew render the Burbank

ordinance invalid!“

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Supremacy Clause, Art. VI, cl. 2 of the United

States Constitution, reads as follows:

“This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof;

and all Treaties made, or which shall be made, under

the Authority of the United States, shall be the

supreme Law of the Land; and the Judges in every

State shall be bound thereby, any Thing in the

Constitution or Laws of any State to the Contrary

notwithstanding.”

The Commerce Clause, Art. 1, sec. 8, cl. 3 of the United

States Constitution, reads as follows:

“The Congress shall have Power...

To regulate Commerce with foreign Nations, and

among the several States, and with the Indian Tribes

”

The Federal Aviation Act of 1958, 72 Stat. 737, 49

U.S. O. § 1301, et seq., is centrally involved in this appeal,

as are the regulations thereunder, 14 C.F.R. Parts 71-77

and 91-97. Among the pertinent sections of that Act

are the following:

Section 1508 of 49 U.S.C. provides, in part:

“The United States of America is declared to pos-

sess and exercise complete and exclusive national

sovereignty in the airspace of the United States

Section 1304 of 49 U.S.C. provides:

“There is recognized and declared to exist in be-

half of any citizen of the United States a public right

of freedom of transit through the navigable air-

— of the United States.”

Section 1348 of 49 U.S.C. provides, in part:

8 . da) The Administrator is authorized and directed

to develop plans for and formulate policy with re-

spect to the use of the navigable airspace; and assign

by rule, regulation, or order the use of the navigable

airspace under such terms, conditions, and limits

tions as he may deem necessary in order to insure the

safety of aircraft and the efficient utilization of such

airspace ....”

“

„(e) The Administrator is further authorized and

directed to prescribe air traffic rules and regulations

governing the flight of aircraft, for the navigation,

protection, and identification of aircraft, for the pro-

tection of persons and property on the ground, and

for the efficient utilization of the navigable airspace,

including rules as to safe altitudes of flight and rules

for the prevention of collision between aircraft, be-

tween aircraft and land or water vehicles, and be

tween aircraft and airborne objects.”

Section 7 of the Noise Control Act of 1972, Pub. L. No.

92-574 (Oct. 27, 1972), which amends section 611 of the

Federal Aviation Act, 49 U.S.C. § 1431 (providing for

control and abatement of aircraft noise and sonic boom),

is set forth in Appendix A to this brief.

Burbank ordinance No. 2216 (the “curfew ordinance”),

held invalid below, added section 20-32.1 to the Burbank

Municipal Code. It provides as follows:

“Sec, 20-32.1 Aircraft Take-Offs.

“(a) Pure Jets Prohibited from Taking Off Be

tween 11:00 P.M. and 7:00 A.M.

“Tt shall be unlawful for any person at the controls

of a pure jet aircraft to take off from the Hollywood-

Burbank Airport between 11:00 P.M. of one day and

7:00 A.M. the next day. |

“(b) Airport Operator Prohibited from Allowing

Take-Offs.

pel mn

“It shall be unlawful for the operator of the Holly-

wood-Burbank Airport to allow a pure jet aircraft

to take off from said airport between 11:00 P.M. of

one day and 7:00 A.M. the next day.

“(c) Exception: Emergencies. 8

This Section shall not apply to flights of an

emergency nature if the City's Police Department

is contacted and the approval of the Watch Com-

mander on duty is obtained before take-off.”

STATEMENT

1. Nature of the Case and Prior Proceedings.

This is an appeal under 28 U.S.C. § 1254(2) from a

decision of the United States Court of Appeals for the

Ninth Circuit entered on March 22, 1972, which unani-

mously affirmed a judgment of the United States District

Court for the Central District of California. The judg-

ment of the district court declared invalid an ordinance

of the City of Burbank which purports to impose a night

curfew on jet aircraft takeoffs at Hollywood-Burbank

Airport. Appellants are the City of Burbank and various

of its officials responsible for enforcement of the ordi-

nance. Appellees are Lockheed Air Terminal, Inc., owner

and operator of the Hollywood-Burbank Airport, Pacific

2 Airlines, an intrastate carrier, and the Air

ranspo: Association of America, an unincorporated

dciation consisting of some thirty-two United

duled interstate air carriers.

On March 31, 1970, the City Council of Burbank passed

the curfew ordinance prohibiting takeoffs of jet aircraft

from the Hollywood-Burbank Airport between 11:00 pm

and 7:00 a.m. Following the effective date of the ordi-

nance, Lockheed Air Terminal, Inc., the airport owner,

and Pacific Southwest Airlines filed this action in the

United States District Court for the Central District of

California seeking to have the ordinance declared uncon.

stitutional and to enjoin its enforcement. The Air Trans.

port Association of America was permitted to intervene

as a plaintiff. The Federal Aviation Administration ap

peared amicus curiae in support of plaintiffs, and the

State of California appeared in that capacity in support

of defendants.

On September 24, 1970, after trial, the district court

(Crary, J.) filed a memorandum opinion holding that the

plaintiffs were entitled to declaratory and injunctive re

lief on both Supremacy Clause and Commerce Clause

grounds (A. 341). On November 30, 1970, the district

court signed and filed its findings of fact and conclusions

of law (A. 375) and entered its judgment declaring the

Burbank ordinance unconstitutional, illegal, and void,

and enjoining its enforcement (A. 408).

Burbank sought review in the Ninth Circuit. Again,

the Federal Aviation Administration and the State of

California participated as amici. On March 22, 1972,

the court (Browning, Duniway and Trask, J.J.) issued

its opinion affirming the judgment of the district court

(A. 410).

2. The Relevant Facts.

The district court’s detailed Findings, of course, pro-

vide the authoritative context for this appeal (A. 375-

ca Soe

401).* Appellants’ Statement of the Case” largely ig-

nores the findings and fails to deal adequately with the

facts relevant to the issues presented by this appeal.

The relevant findings and facts established by the rec-

ord are summarized below:

(a) The Hollywood-Burbank Airport. The Airport was

dedicated May 30, 1930, and has been in continuous

use since that time by both private and commercial air-

craft. There are two runways for the operation of air-

craft at Hollywood-Burbank Airport, each of which can

be used in either direction depending upon wind condi-

tions. The Airport occupies approximately 535 acres, of

which approximately 128 (including significant portions

of each runway) are owned by the federal government.

Although the major portion of the Airport lies within

the City of Burbank, a portion of the Airport is within

the City of Los Angeles. (F.F. 6, A. 377; F.F. 18,

A. 380-81.)

Hollywood-Burbank Airport is an important “satel-

lite” airport in the national air transportation system.

Satellite airports, such as Hollywood-Burbank or Oak-

land International and San Jose Municipal in the San

Francisco area, are airports that serve geographical

areas immediately adjacent to major metropolitan areas

which also have one or more “hub” or major airport

facilities. These satellite airports play an essential role

in the national air transportation system in relieving air

and ground congestion, in reducing air-traffic delays at

—

_* The Burbank brief is replete with unproven and often

dmelevant factual assertions, purportedly based upon such non-

brd sources as articles in newspapers and other periodicals,

statements I ed i during the con-

or ae sac <4, ie on. 5930.

as ae

primary airport centers, and in providing more con-

venient service to the surrounding areas, which are of

sufficient size in terms of population and economy to

require their own air service. The important role of

satellite airports is recognized by the Civil Aeronautics

Board in its route investigations. (F.F. 11, A. 379; FF.

13, A. 379.) 8

Héllywood-Burbank Airport forms a vital link in inter-

state and intrastate commerce. It is included in the

National Airport Plan promulgated by the Administra-

tor of the Federal Aviation Administration pursuant to

the Federal Airport Act of 1946, ch. 251, 60 Stat. 170.°

And it is the most convenient airport in the greater Los

Angeles metropolitan area for the entire San Fernando

Valley, Hollywood, and the cities of Burbank, Glendale,

Pasadena and Alhambra, an area containing a populs-

tion of 2.2 million persons. (F.F. 14, A. 379; F. F. 1,

A. 380.) (The City of Burbank has a population of

95,000 (F. F. 7, A. 377).)

In 1969 there were approximately 32,000 air carrier

movements at Hollywood-Burbank Airport serving

1,178,000 commercial passengers in regularly scheduled

interstate and intrastate transportation. Approximate-

ly 97 percent of these operations were conducted by pure

jet aircraft. (F.F. 20, A. 381; F.F. 6, A. 377.)

Hollywood-Burbank Airport has been an important

commercial airport for Los Angeles for a number of

years. Until 1946 all commercial flights into or from

Los Angeles were conducted out of this airport. In that

year Hollywood-Burbank counted 82,000 commercial

This Act superseded by the Airport and Airwa Devel-

opment Act of 1970, which forward the nent of &

“national airport systems plan.” 49 U.S.C. § 1712 (a).

movements serving 1, 200, 000 passengers. Military jets

begun operating from the Airport immediately following

World War II.

Commercial service at Hollywood-Burbank declined in

1947 with the opening of what is now Los Angeles Inter-

national, but by 1953 had rebounded to approximately

780,000 passengers annually. The advent of large com-

mercial jet aircraft, which could not be accommodated

at Hollywood-Burbank Airport, again caused a dip in

the number of operations in 1959. But with the intro-

duction of two and three-engine jet aircraft in 1965, the

Airport experienced an upsurge in commercial opera-

tions which had continued to the time of trial. (A. 140-42,

159.)

The Burbank City Council has on several occasions

requested and supported additional air transportation

services at Hollywood-Burbank Airport in route pro-

ceedings before the Civil Aeronautics Board. The Mayor

and City Council of Burbank expressly requested and

supported the additional air service from Burbank to the

Pacific Northwest, which route was awarded by the

CAB on May 12, 1970 to Continental Air Lines. The

CAB order required that this service be provided through

the Los Angeles satellite airports, including Hollywood-

Burbank Airport, rather than through Los Angeles Inter-

national.“ (F. F. 15-16, A. 380.)

— freeways to . — 8 2

. n

a oe

(b) The Curfew Ordinance. Following enactment, Bur-

bank city officials publicly announced their intention to

enforce the curfew ordinance (F.F. 9, A. 378). Immedi-

ately, the ordinance required PSA to cancel a regularly

scheduled flight which it had operated for over two years

serving an average of 125 passengers, 80 of whom were

boarding at Hollywood-Burbank Airport (F.F. 61,

A. 394). And although Continental Air Lines was

granted new authority from the CAB to commence reg-

ularly scheduled interstate service from Hollywood-

Burbank Airport to Portland and Seattle, the Burbank

curfew ordinance would prevent Continental from filling

out its service pattern by the addition of a southbound

after-dinner flight (F. F. 65-66, A. 395).

court found that the federal statutes, regulations, and

orders have completely occupied the field of the regula-

tion of the use of navigable airspace and aircraft oper-

ations (F.F. 58, A. 393). The trial court’s findings of

fact reflecting the federal statutes and regulations gov-

erning air carrier operations are in Findings 23-27;

those with respect to certification of aircraft, airmen

and airports are in Findings 28-33; those with respect

to the framework of federal centralized management

and control of navigable airspace are in Findings 34.

40; those covering federal control of all aspects of

aircraft flight operations are in Findings 41-47; those

relating to the exercise of centralized management and

control directed to achieving the maximum efficient use

of the navigable airspace, including flow control and

high density traffic airport regulations, are in Findings

48-53; and those covering federal regulation of aircraft

noise abatement are in Findings 54-57. Together, these

Findings provide a comprehensive symmary of the

pervasiveness of federal regulation of all aspects of

aireraft operations, use of the navigable airspace and

aireraft noise abatement generally and at Hollywood-

Burbank Airport.

Each scheduled interstate air carrier that uses

Hollywood-Burbank Airport holds a Certificate of

Public Convenience and N ecessity issued by the Civil

Aeronautics Board, which authorizes and obligates the

carrier to engage in air transportation and to provide

adequate service with respect to persons, property and

mail over specified routes. (F. F. 24, A. 382; C. L. „ A.

404-05.) The Operations Specifications issued by the

FAA to each carrier require these carriers to operate

their turbojet aireraft within the navigable airspace in

accordance with instrument flight rules (IFR) and

specifically authorize the use of Hollywood-Burbank

Airport (F.F. 27, A. 383).

Every portion of the flight of a commercial jet aircraft

takes place under the direct control of an FAA facility,

from the filing of a flight plan, through the assignment

of a runway and clearance to taxi thereto, the takeoff

clearance, the assignment of a standard instrument de-

parture procedure (PX 7, A. 452-53) and a radio beam

intersection to which to fly, to the assignment of a

standard instrument approach procedure (PX 7) and

clearance to approach for landing on an assigned run-

way. (F. F. 41-47, A. 386-89.)

(d) The Efficient Use of Airspace. In exercising cen-

tralized management and control over the navigable

airspace of the United States, the FAA has as one of

its statutory goals the efficient use of this airspace,

which includes the expeditious movement of aircraft. A

“Yariety of techniques are used by the FAA to insure

ient use of the presently congested airspace, includ-

an, , yee

ing the utilization of centralized flow control procedures

and high density airport rules which are discussed, res-

pectively, in Findings 51-52 and 53-54 (A. 390-92). (F. F.

49-50, A. 390.)

As an aspect of effective airspace management, Lock-

heed is subject to federal regulation, as owner and pro-

prietor of the Hollywood-Burbank Airport. The Federal

Aviation Act of 1958 prohibits the establishment or con-

struction of civil airports not receiving federal funds,

such as Hollywood-Burbank, or even the substantial

alteration of a runway layout, without prior compliance

with regulations prescribed by the Administrator. 49

U.S. C. § 1350. This requirement was established “in

order to assure conformity to plans and policies for, and

allocation of, airspace by the Administrator... .” Id.

The FAA also directly regulates Lockheed, and all

other airports serving air carriers certificated by the

CAB, through the terms, conditions and limitations of

the airport operating certificate issued by the Admini

trator (F.F. 33, A. 384). An airport cannot be operated

without such a certificate. 49 U.S.C. 5 1430 (a) (8), 1432.

Prior to commencement of jet operations at Hollywood-

Burbank Airport, the FAA determined under 49 U.S. C.

§§ 1426, 1301(8), (22) that takeoffs and landings of jet

aircraft on each runway would not be unsafe to persons

and property on the ground or in the air (F. F. 19, A

381). In addition, essential parts of the airport, includ-

ing costly navigation aids and the Airport Traffic Con

trol Tower and Radar Approach and Departure Control,

are actually operated and maintai ed by the FAA itself

pursuant to license agreement with Lockheed. (F.F. 36-

37, A. 385; PX 5, 6, A. 440-52.)

(e) Noise Abatement Regulations. Actions taken by

the FAA to achieve noise abatement at airports gener-

ip i

ally are summarized in Findings 54, 55 and 57 (A. 392-

93). Such actions include regulations prescribing mini-

mum altitude during descent for landing and climb rates

after takeoff, as well as standard instrument departures

to reduce noise over residential areas between 11:00

p.m. and 7:00 a.m.

Prior to the enactment of the Burbank curfew ordi-

nance, the FAA took in hand the subject of nighttime

takeoffs at Hollywood-Burbank Airport and acted to

minimize the consequences of those operations by issuing

the noise abatement order summarized in Finding 56 (A.

392). This order, which was issued by the FAA Chief

of the Burbank Air Traffic Control Tower, establishes a

preferential runway for departures of jet aircraft

between the hours of 11:00 p.m. and 7:00 a.m. In issuing

this order the responsible federal official announced his

determination that the noise abatement procedures

which it established were “designed to reduce community

exposure to noise to the lowest practicable minimum”

(PX 30, A. 454).

The trial court found that pursuant to this order, “the

preferential runway is assigned by the FAA control

tower [between 11:00 p.m. and 7:00 a.m.] by incorpor-

ation into an aircraft’s departure ‘clearance’ as an

instruction to the pilot” (F. F. 56, A. 393). Any person

Violating an air traffic control clearance or instruction is

subject to a civil penalty and to suspension or revocation

of his airman’s certificate. 49 U.S.C. §$§ 1429, 1430(a)

(5), 1471; 14 C. F. R. § 91.75. The testimony showed that

the preferential runway established by the order was

ed except for a “few occasions” when the control tower

Permitted deviation because of unusual weather or oper-

conditions affecting safety (A. 318, 322-23).

—14—

The FAA also employs its noise abatement authority

in the field of aircraft design and performance. On

November 18, 1969 regulations were adopted prescribing

noise standards which must be met as a condition of

type certification for new subsonic turbojet aircraft. 34

Fed. Reg. 18355, now published at 14 C. F. R. Part 36.

Airplanes of older type design produced after July 1,

1973 would be required to comply with these “Part 36”

noise standards under an FAA Notice of Proposed Rule-

making issued July 7, 1972. 37 Fed. Reg. 14814, And on

October 30, 1970, the Administrator issued an Advance

Notice of Proposed Rulemaking concerning “civil air-

plane noise reduction retrofit requirements.” 35 Fed.

Reg. 16980.

(f) Effect on Commerce. The district judge found

that air commerce, by reason of its speed and volume,

requires regulation by a single authority if it is to be

conducted with maximum safety and so as to achieve

efficient use of the navigable airspace (F. F. 59, A. 394;

C.L. 21, A. 406). The evidence was uncontradicted that

air transportation problems are not amenable to solution

by local regulation (A. 368).

The district judge also found, upon the basis of un-

contradicted testimony, that if the curfew ordinance

were upheld, similar ordinances would be adopted by

virtually all cities surrounding airports (F. F. 69, A. 396).

Such a proliferation would adversely affect the aviation

industry, the members of the traveling public, and the

national economy (F. F. 70, A. 396).

The impact of such an ordinance on airline scheduling

extends well beyond the period of any particular curfew

and beyond the boundaries of the regulated airport. The

Burbank ordinance alone restricts the period that Conti-

nental may originate departures from Seattle to twelve

hours of the day. (F. F. 66, A. 395.) And if curfews were

adopted nationwide, departures between widely sepa-

rated cities would be limited to less than one-third of

the hours of the day (F. F. 68, A. 396).

The testimony showed that each day, some 1,009 sched-

uled domestic interstate departures occur throughout

the United States between 11:00 p.m. and 7:00 a.m., and

all these flights would have to be cancelled if a curfew

were imposed on a nationwide basis (F. F. 74, A. 397).

Continental Air Lines alone would have to cancel over

48 flights per day, and its operating costs would be in-

creased by approximately 25 percent (F. F. 71-72, A. 397).

Other carriers would be similarly affected (F.F. 73,

A. 397).

Over 48 percent of the nation’s air mail is carried dur-

ing curfew hours. Nationwide imposition of a curfew

would annually delay billions of pieces of mail at least

one day in delivery. (F. F. 79, A. 399.) In addition, the

air freight industry, which exists upon its ability to

operate during curfew hours, would be required to cancel

approximately 42 percent of the all-cargo services (F.F.

80-81, A. 399-400).

The testimony also showed that the imposition of cur-

few ordinances would cause a bunching of flights in the

hours immediately preceding the curfew. This would

have the twofold effect of increasing an already serious

congestion problem and of actually increasing, not re-

lieving, the noise problem by increasing flights in the

period of greatest annoyance to surrounding communi-

ties. The district court found that this “result is totally

“inconsistent with the objectives of the federal statutory

and regulatory scheme.” (F. F. 78, A. 399.)

Thus, based upon uncontradicted evidence, the district

eourt found that the imposition of curfew ordinances on

„

a nationwide basis would (1) drastically restrict the

hours available for flight scheduling far beyond the cur-

few period, (2) severely impair the efficiency of the

aircraft maintenance system, (3) require extensive re-

scheduling at enormous inconvenience and expense, (4) ;

deteriorate air transportation service to the public, (5)

increase the already serious congestion problem, and -

(6) intensify the noise problem in the hours immediately

preceding the curfew. (F. F. 67-68, 70-82, A. 396-400.)

3. Decision of the District Court.

The district court held that the federal government has

preempted the field of regulations governing and con-

trolling the use of airspace and air traffic. From its analy-

sis of the federal statutes and regulations, the court

concluded that “Congress intended to centralize full and

dominant control of the navigable air space in the Federal

Government so as to provide for its safe and most efficient

use” (A. 361). The court also held that local curfew

legislation “would conflict with the certificated rights and

obligations” of the air carriers (A. 367-68).

The district court also ruled that the Burbank ordi-

nance would violate the Commerce Clause in two respects.

First, based upon its holding that the effect of the ordi-

nance is to be considered on a “national basis,” the court

held that the ordinance cannot stand because there would

be a “very serious loss of efficiency as to the use of air

space” and the carriage of interstate passengers and

goods would be “seriously interrupted” (A. 367): Becond,

, the trial court held that “air commerce, by reason of its

speed and volume, requires a single authority in control

if it is to be conducted at maximum safety and efficient

use of the navigable air space“ (A. 368).

W ee

4 Decision of the Court of Appeals.

On March 22, 1972 the Ninth Circuit held the Burbank

curfew ordinance invalid under the Supremacy Clause,

finding it unnecessary to reach the Commerce Clause

issues.

With respect to preemption, the court of appeals found

that the Federal Aviation Act of 1958, as amended, 49

U.S.C. $§ 1301-1542, created a comprehensive scheme to

deal with air commerce at the federal level and that the

overall design of Congress was to centralize in a single

authority the power to promulgate rules and regulations

for the use of the nation’s airspace. The court found that

Congress, in amending the Act in 1968, 49 U.S.C. § 1431,

confirmed federal preemption of the field of aircraft

noise regulation so as to exclude the exercise of State

and local police power in this area. (A. 420-23.)

The Ninth Circuit also held that the Burbank curfew

ordinance conflicted with the federal scheme of aviation

regulation when tested by the standards of Peres v.

Campbell, 402 U.S. 637 ( 1971), because it “interferes with

the balance set by the FAA among the interests with

which it is empowered to deal. (A. 426). The circuit

noted that at the time the Burbank ordinance was passed,

the FAA had already issued and put into effect preferen-

tial runway use procedures with respect to night opera-

tions designed to reduce aircraft noise in the vicinity of

the Hollywood-Burbank Airport to “the lowest practi-

cable minimum.” The court held that the attempt by the

City of Burbank to go beyond the noise abatement meas-

ures adopted by the FAA “frustrates the full accomplish-

ment of the goals of Congress.” (A. 426-27.) In addition,

me court ruled that the effect of the curfew was to termi-

nate the federal statutory right of free transit through

the navigable airspace (A. 426 n.12). Judge Browning

limited his concurrence to the conflict portion of the

opinion.

SUMMARY OF ARGUMENT

Introduction

The context for the basic issue before the Court —

whether a city can exercise its police power to impose a

curfew on commercial jet flights — is the rapidly in-

creasing dependence of our nation on its air transporta-

tion system. In the last two decades, the number of air

rs and the amount of air cargo and air mail have

increased at a phenomenal rate.

Nighttime operations are crucial to the air transporta-

tion system, the record here indicating that 48% of the

air mail and 42% of air cargo is carried during curfew

hours. More than 1,000 scheduled flights would have to be

- eancelled every night if the Burbank curfew were applied

nationally.

The unique nature of air commerce, together with our

nation’s dependence on it, is a theme which runs through |

all of the legal arguments. Aircraft travelling at 600

miles an hour constitute a way of travel which quickly

escapes the bounds of local regulative competence. The

testimony at the trial showed that the approach to prob-

lems of air transportation at the local level just does not

work; it has to be done on a national basis because it is

a national operation. Uncoordinated local attempts at

regulation would produce confusion and chaos, and rather

than solving the problem of aircraft noise would merely

shift it to another community or another airport or an-

other time period. ‘

I. Preemption

The comprehensive Federal Aviation Act of 1958, 49

U.S.C. § 1301, et seg., displays an unmistakable congres-

sional intention to preempt the management of navigable

airspace and regulation of aircraft flight operations.

That Act, which establishes a public right of freedom of

transit through the navigable airspace, directs the Fed-

eral Aviation Administrator to adopt regulations “to

insure the safety of aircraft and the efficient utilization of

such airspace.” 49 U.S.C. §§ 1304, 1348 (a). The authori-

tative Senate Report on the Act states that the Act was

intended to vest “unquestionable authority for all aspects

of airspace management in the Administrator of the new

Agency [the FAA].”

The 1968 amendment to the Act, 49 U.S.C. § 1431, made

explicit the FAA’s responsibility with respect to the

abatement of aircraft noise. It directed the Adminis-

trator to prescribe regulations “for the control and abate-

ment of aircraft noise and sonic boom.” This amendment

carefully laid out the factors which the Administrator

is to consider and balance in formulating noise abatement

regulations. 49 U.S.C. §1431(b), supplementing 49

U.S.C. § 1303.

The legislative history of the 1968 amendment states

that it would “expand the federal government’s role

in a field already preempted” and that “state and local

governments will remain unable to use their police

powers to control aircraft noise by regulating the flight

of aircraft.” S. Rep. No. 1353, 90th Cong., 2d Sess. 6-7

(1968). While the legislative history states that airport

" proprietors retain certain powers to exclude certain types

of aircraft based upon noise considerations, this state-

45 ment is not relevant here because the City of Burbank

is not the proprietor of Hollywood-Burbank Airport.

ec WI ca

The FAA has issued regulations of formidable pro-

portions, impressive detail, and manifest sophistication.

There are extensive regulations for noise abatement (in-

cluding regulations covering the nighttime hours at

Hollywood-Burbank Airport) as well as significant regu-

lations for efficient use of the navigable airspace (includ-

ing, for example, flow control procedures affecting

aircraft on the ground at Hollywood-Burbank Airport).

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

constitutes a further assertion by the federal government

of its dominance in the field of the abatement of aircraft

noise. Under the terms of the new Act, the expertise of

the Environmental Protection Agency (EPA) will bolster

the broad regulatory power of the FAA under existing

law. The new statute calls for a study by the EPA which

will consider, among other things, “the imposition of cur-

fews on noisy airports.” 118 Cong. Rec. S 18644.

The federal regulatory scheme meets all three tests

for preemption laid down in Rice v. Santa Fe Elevator

Corp., 331 U.S. 218, 230 (1947), and subsequent cases.

First, viewed in sequence, the 1958 Act, the 1968 Amend-

ment, and the 1972 Noise Control Act constitute a com-

plete and pervasive occupation of the fields of airspace

management and the regulation of aircraft operations .

and aircraft noise. Second, the congressional statutes and

regulations pertaining to management of the navigable

airspace unquestionably touch a field in which the federal

interest is dominant. Finally, it is clear that uncoordi-

nated local regulation would produce a result inconsistent

with the objective of federal law, which is to secure

efficient as well as safe use of the navigable airspace.

The Burbank curfew ordinance intrudes into this ex-

clusive federal domain. It would deny jet aircraft access

to the navigable airspace for fully one-third of each day.

As the district court concluded, the local imposition of

curfews would cause a “very serious loss of efficiency”

with the result that the statutory objective would be

“compromised” (C.L. 16, A. 404). Moreover, curfews

would increase the already serious congestion problem

and also actually increase, not relieve, the noise problem

by pushing more N into the periods of greatest

annoyance.

II. Conflict

Apart from the preemption issue, there is a “conflict”

between the Burbank ordinance and an FAA order. At

the time the ordinance was enacted, federal officials had

already taken the subject of nighttime flights in hand:

aircraft operations at Hollywood-Burbank Airport were

already subject to an FAA noise reduction order (BUR

7100.5B) which established a preferential runway system

for departures between 11:00 p.m. and 7:00 am. The

Burbank ordinance would make a nullity of the FAA

order and would, as the court of appeals unanimously

held, conflict and interfere with the balance set by the

FAA among the interests with which it is empowered to

deal. In addition, the curfew would interfere with the

federally guaranteed right of free transit through the

navigable airspace. The Supremacy Clause bars a local

enactment which would so frustrate the full accomplish-

ment of the goals of Congress. Perez v. Campbell, 402

U.S. 637, 649 (1971).

III. Commerce Clause

Even in the absence of the comprehensive federal legis-

lation present here, the Commerce Clause protects the

national commerce from hostile actions of local govern-

ments. One of the tests for the validity of a local law

is whether it operates in an area where regulation should

be prescribed by a single authority. Southern Pacific Co.

v. Arizona, 325 U.S. 761, 768-69 (1945). As the district

court found, airspace management and the regulation of

aircraft operation is such an area (F.F. 59, A. 394). The

volume of air commerce, the speed with which it is con-

ducted, and the technical complexity of aircraft sched-

uling, operations, and maintenance combine to establish

a powerful need for centralized management.

The Burbank ordinance is also defective under the

other test laid down in Southern Pacific Co. v. Arizona,

namely whether the local regulation impedes substan-

tially the flow of commerce. 325 U.S. at 768-69. Under

this test, a local regulation should not be viewed as an

isolated phenomenon but rather the Court should con-

sider the effect on commerce if similar regulations were

enacted throughout the United States.

There would be a “near catastrophic effect on the na-

tional air transportation system” if the Burbank curfew

were applied on a national basis (F.F. 70, A. 396). For

example, the air cargo industry exists upon its ability

to operate during curfew hours, and the required can-

cellation of these all-cargo services would have a drastic

impact upon the nation’s business community (F. F. 80-81,

A. 399-400). And billions of pieces of mail annually

would be delayed at least one day in delivery {F.F. 79,

A. 399). These massive disruptions in the national air

transport system clearly constitute an unreasonable bur-

den on interstate commerce and impede substantially its

free flow. .

5 ARGUMENT

Introduction.

The basic issue before the Court is whether a city

ean exercise its police power to impose a curfew on

jet flights into the navigable airspace from an airport

which the city does not own or operate and from which

regularly scheduled commercial operations are conducted.

The nation’s dependence on commercial air transporta-

tion has increased at a phenomenal rate in the last two

decades. Passenger miles on certificated air carriers in

the United States rose from 8,029 million miles in 1950,

to 30,556 million miles in 1960, and to 104,155 million

miles in 1970. Air cargo ton miles rose from 226 million

in 1950, to 611 million in 1960, and to 2,295 million in

1970. Air mail ton miles in the United States grew from

47 million in 1950, to 136 million in 1960, and to 714

million in 1970.“

Nighttime operations are crucial to the air transporta-

tion system upon which the nation so heavily relies. The

record here shows that 48% of the air mail** and 42% of

air cargo is carried during curfew hours (F.F. 79-80, A.

399-400). If the Burbank curfew should spread to the

entire system (and the district judge found that it would

if upheld here, F.F. 69, A. 396), more than 1,000 flights

would have to be cancelled every night (F.F. 74, A. 397-

98). It was not hyperbole for the district court to find

that a national curfew on the Burbank model would have

* Civil Aeronautics Board Handbook of Airline Statistics,

Tables 15, 27 and 40 (1971).

3 licy of the United States as established by

te 197 wert Bert penne Boe Thy

that the achievement of “ re

3 letter me mel to all of the nation that

5 a primary oe, of postal U.S. C. § 101(£).

one,” One

a “near catastrophic effect on the national air transporta-

tion system” (F. F. 70, A. 396).

The unique nature of air commerce, together with our

nation’s dependence on it, is a theme which runs through

all of the legal arguments, as this Court early perceived,

air commerce legally and literally “soared into a differ-

ent realm than any that had gone before.” Chicago d

Southern Air Lines v. Waterman Steamship Corp., 333

U.S. 103, 107 (1948). “A way of travel which quickly

escapes the bounds of local regulative competence called

for a more penetrating, uniform and exclusive regulation

by the nation than had been thought appropriate for the

more easily controlled commerce of the past.” Id. at 107.

The special character of air transportation pervaded

the testimony at the trial. The testimony showed that

during a single 24-hour period, a typical commercial air-

craft, travelling at 600 m. p.h., will make stops in 10

different states and overfly perhaps another 10 states

(A. 258). The former director of the United States

Army Aviation, Clifton F. von Kann, testified that “air-

craft have such a range and speed and they involve such

technical complexity that they have to be managed on a

centralized basis” (A. 258). James T. Pyle, former ad-

ministrator of the Civil Aeronautics Administration,

testified :

“The approach to the solution of problems in air

transportation at the local level just does not work.

It has to be done on a national basis because it is

a national operation.” (A. 295.)

Given the nature of air commerce, “there would be

utter chaos,” testified Mr. Pyle, if there were a prolifer-

ation of ordinances enacted by intersecting and over-

lapping local jurisdictions, all addressing themselves to

the same basic problem in air transportation (A. 296).

The major airports of the nation are so located that, if

Burbank’s ordinance were upheld, many of them would

be subject to having their flight operations restricted

by the police power of at least two and sometimes several

local jurisdictions. And inevitably, uncoordinated local

attempts at regulation do not solve the aircraft noise

problem but merely shift it to another community or to

another airport or another time period. (A. 292-93.)

In the pages which follow, we will show that Burbank’s

purported exercise of police power over air commerce is

invalid because it invades a field which has been pre-

empted by the federal government, because it conflicts

with federal orders and statutes, and because it runs

afoul of the Commerce Clause.

I THE FEDERAL GOVERNMENT HAS PRE.

EMPTED THE MANAGEMENT OF AIRSPACE

AND THE REGULATION OF AIRCRAFT OPER-

ATIONS AND AIRCRAFT NOISE.

In 1958 Congress enacted the comprehensive Federal

Aviation Act, providing for the management of the navi-

gable airspace and regulation of aircraft operations. The

1958 Act also contained a general provision which pro-

vided authority for the issuance of noise abatement regu-

lations by the Federal Aviation Administration. 49

U.S.C. § 1348(c). In 1968 Congress enacted a specific sec-

tion (now § 611) for “the control and abatement of air-

craft noise and sonic boom.” 49 U.S.C. § 1431(a). This

_ Specific federal authority for aircraft noise abatement

was elaborated and confirmed by the Noise Control Act of

1972, Pub. L. No. 92-574 (Oct. 27, 1972).

In this section, we will first review these three crucial

enactments and the pertinent regulations, and then dis-

cuss the legal effect of the pervasive statutory and reg-

ulatory scheme.

A. The Federal Aviation Act of 1958.

The cornerstone of the statutory scheme involved here

is the Federal Aviation Act of 1958, 49 U.S.C. § 1301,

et seq. (the “Act” or the “1958 Act”). The United States

is declared “to possess and exercise complete and ex-

clusive national sovereignty in the airspace of the United

States,” 49 U.S.C. § 1508(a). The Act also declares that

“there is recognized and declared to exist in behalf of any

citizen of the United States a public right of freedom of

transit through the navigable airspace of the United

States,” 49 U.S.C. § 1304.

The Act authorizes and directs the Federal Aviation

Administrator (the Administrator“):

“[T]o develop plans for and formulate policy with

respect to the use of the navigable airspace; and

assign by rule, regulation, or order the use of the

navigable airspace under such terms, conditions, and

limitations as he may deem necessary in order to

insure the safety of aircraft and the efficient utiliea-

tion of such airspace.”* 49 U.S. C. § 1348(a).

The above-quoted section is the “heart” of the Act.

S. Rur. No. 1811, 85th Cong., 2d Sess. 14-15 (1958) (here-

after S. Rur. No. 1811”). This key section of the Act

stresses the dual purpose of federal regulation of the

use of navigable airspace: “e

(1) “to insure the safety of aircraft;” and

„ Unless otherwise noted, emphasis is added throughout.

ee eee,

(2) to insure “the efficient utilization of such air-

space.”

The legislative history of the Act illuminates the pur-

pose of Congress to “vest in a single Administrator

' plenary authority for airspace management.” S. Rep. No.

1811, at 15. The Senate Report pointed out that responsi-

bility for air traffic control planning “has until quite

recently been scattered among a plethora of interagency

committees and boards instead of being concentrated in

one overall authority.” The Report indicated that “this

situation has been made almost inevitable by the lack of

any clear provision in present law for unified control of

our national airspace.” Id. at 13.

Previous efforts to achieve airspace allocation or uni-

fied control rested, said the Report, “upon the shifting

sands of legal ambiguity.” Id. at 14. The 1958 Act was

intended to end the uncertainty:

“The present legislation proposes to clear away

this ambiguity once and for all by vesting unques-

tionable authority for all aspects of airspace man-

agement in the Administrator of the new Agency.”

S. Rep. No. 1811, at 14.

The comprehensive character of the 1958 Act itself

leaves little doubt that Congress intended to provide the

Administrator with the tools necessary to exercise his

“plenary” authority. For example, the Administrator

is authorized to develop plans and formulate policy with

respect to the use of navigable airspace and allot the

use of such airspace as he deems proper, 49 U.S.C. §

1348(a); prescribe rules governing the flight of aircraft,

49 U.S.C. § 1348(c); promote air commerce by establish-

ing and maintaining air navigation facilities, 49 U.S.C.

_ §§ 1303(d), 1348(b); prescribe certain types of equip-

ment airplanes must utilize, 49 U.S.C. 5 1423 (a) (1);

issue airworthiness certificates to aircraft which are in a

condition for safe operation, 49 U.S.C. § 1423(c); issue

air carrier operating certificates specifying the federal

airways over which each carrier is authorized to operate,

49 U.S. C. § 1424(b); and issue airman certificates speci-

fying the capacities in which the holders are authorized

to serve, 49 U.S.C. § 1422(a).

In exercising his powers, the Administrator is directed

to consider the following factors as being in the “public

interest” :

“(a) The regulation of air commerce in such man-

ner as to best promote its development and safety

and fulfill the requirements of national defense;

“(b) The promotion, encouragement, and develop-

ment of civil aeronautics;

“(¢) The control of the use of the navigable air-

space of the United States and the regulation of both

civil and military operations in such airspace in the

interest of the safety and efficiency of both;

“(d) The consolidation of research and develop-

ment with respect to air navigation facilities, as

well as the installation and operation thereof;

“(e) The development and operation of a common

system of air traffic control and navigation for both

military and civil aircraft.” 49 U.S.C. § 1303.

Under section 1348(c) of 49 U.S. C., the Administrator

is authorized and directed “to prescribe air traffic rules

and regulations . for the protection of persons and

property on the ground.” Prior to the 1968 enactment of

an explicit noise abatement section (§ 611), the Admin-

istrator prescribed FAA noise abatement pursuant to the

authority and direction conferred by this section. See,

2%, 25 Fed. Reg. 1764, 1767 (1960); 26 Fed. Reg. 9069,

9071 (1961).

Federal dominance in the fields of airspace manage-

ment and air traffic control is not diminished by the “sav-

ing clause” in section 1506 of 49 U.S. C., which is relied

upon by Burbank (Br. p. 35) and by the State as amicus

(Br. p. 17). In “saving” the “remedies now existing at

common law or by statute,” this “boilerplate” provision

preserves tort law remedies such as the right of individ-

uals to commence wrongful death actions. See, e. g., Fite-

gerald v. Pan American World Airways, Inc., 229 F. 2d

499, 502 (2d Cir. 1956) ; Porter v. Southeastern Aviation,

Inc., 191 F. Supp. 42 (M.D. Tenn. 1961). But the preser-

vation of these preexisting tort law remedies cannot be

thought to provide any support for an ordinance such as

Burbank’s which infringes on an area where federal pre-

emption is, as the court of appeals said in this connection,

“unavoidable.” (A. 424). Saving clauses of this type

have long been held to preserve only those remedies not

inconsistent with the purpose of the enactment. See

Pennsylvania R. Co. v. Puritan Coal Min. Co., 237 U.S.

121, 129-30 (1915); Texas & P. R. Co. v. Abilene Cotton

Oil Co., 204 U.S. 426, 446 (1907).

B. The 1968 Noise Abatement Amendment.

In 1968, following hearings in both houses, Congress

focused specific attention on the problem of aircraft

noise. This effort resulted in the adoption of a new sec-

tion of the Federal Aviation Act (§ 611) which directed

the Administrator to prescribe rules and regulations for

the control and abatement of aircraft noise and sonic

boom, as follows:

he 4

mMn order to afford present and future relief and

protection to the public from unnecessary aircraft

= a

noise and sonic boom, the Administrator of the Fed-

eral Aviation Administration, after consultation

with the Secretary of Transportation, shall prescribe

and amend standards for the measurement of air-

craft noise and sonic boom and shall prescribe

and amend such rules and regulations as he may find

necessary to provide for the control and abatement

of aircraft noise and sonic boom, including the appli-

cation of such standards, rules, and regulations in

the issuance, amendment, modification, suspension,

or revocation of any certificate authorized by this

subchapter.” 49 U.S.C. § 1431 (a).

Supplementing 49 U.S.C. & 1303 (quoted above, p. 28),

the 1968 amendment carefully laid out the additional

factors to be considered by the Administrator in pre-

scribing such noise abatement regulations:

“In prescribing and amending standards, rules,

and regulations under this section, the Administrator

shall —

“(1) consider relevant available data relating

to aircraft noise and sonic boom, including the

results of research, development, testing, and eval-

uation activities conducted pursuant to this chap-.

ter and chapter 23 of this title;

“(2) consult with such Federal, State, and inter-

state agencies as he deems appropriate;

“(3) consider whether any proposed standard,

rule, or regulation is consistent with the highest

degree of safety in air commerce or air trahsporta-

tion in the public interest;

“(4) consider whether any proposed standard,

rule, or regulation is economically reasonable,

technologically practicable, and appropriate for

the particular type of aircraft, aircraft engine,

appliance, or certificate to which it will apply ; and

“(5) consider the extent to which such standard,

rule, or regulation will contribute to carrying out

the purposes of this section.“ 49 U.S.C. & 1431 (b).

Thus, in formulating noise abatement regulations, the

FAA is obligated under’49 U.S.C. 5 1303 and 1431 (b) to

balance the need for environmental protection with con-

siderations of safety, efficiency, common defense and

available technology. As the court of appeals held, the

statutory scheme vested in the FAA the responsibility

to “resolve the proper balance among the multiple pur-

poses” (A. 419).

The legislative history of the 1968 amendment supports

the conclusion that the federal government has preempted

the power of local government to deal with aircraft noise

by controlling the flight of aircraft. The authoritative

Report of the Senate Commerce Committee states:

“In this regard, we concur in the following views

set forth by the Secretary [of Transportation] in

his letter to the committee of June 22, 1968:

‘The courts have held that the Federal Govern-

ment presently preempts the field of noise regula-

tion insofar as it involves controlling the flight of

aircraft. Local noise control legislation limiting

the permissible noise level of all overflying aircraft

has recently been struck down because it con-

flicted with Federal regulation of air traffic. Amer-

ican Airlines v. Town of Hempstead, 272 F.Supp.

226 (U. S. D. C., E. D., N.Y. 1966). The court said, at

231, “The legislation operates in an area committed

to Federal care, and noise limiting rules operating

as do those of the ordinance must come from a

Federal source.” H.R. 3400 would merely expand

the Federal Government’s role in a field already

preempted. It would not change this preemption.

State and local governments will remain unable

to use their police powers to control aircraft noise

by regulating the flight of aircraft.’” S. Rur. No.

1353, 90th Cong., 2d Sess., July 1, 1968, 2 U.S.

Conn Cons. & Ap. News 2693-94 (1968).

Burbank (Br. p. 48) purports to find comfort in the

following portion of the Senate Committee Report re-

lating to the powers of an airport “proprietor” (the

entity owning and operating the airport):

“However, the proposed legislation will not affect

the rights of a State or local public agency, as the

proprietor of an airport, from issuing regulations

or establishing requirements as to the permissible

level of noise which can be created by aircraft using

the airport. Airport owners acting as proprietors

can presently deny the use of their airports to air-

craft on the basis of noise considerations so long as

such exclusion is nondiscriminatory.” Id. at 2694.

In discussing the powers of the airport proprietor, the

mmittee Report states that “just as an airport owner

is responsible for determining how long the runways will

2, 80 is the owner responsible for obtaining noise ease-

m rents necessary to permit the landing and takeoff of the

aire ” Id. at 2694, This language is drawn from

iggs.v. Allegheny County, 369 U.S. 84, 89 (1962), where

ne Court held that the airport proprietor has to pay the

pil eee eee ane: of a land-

The difficulty with Burbank's argument based upon the

1968 Committee Report is that the appellant City of Bur-

bank is not the proprietor of Hollywood-Burbank Air-

port. The proprietor of this airport is the appellee

Lockheed Air Terminal. Accordingly, the court of ap-

peals correctly rejected Burbank’s argument:

“The City of Burbank has no proprietorship in-

terest in H-B Airport: It is making an effort to exert

its police power in the field of noise regulation, which

the Secretary states, and the Committee agrees, has

been preempted by the Federal Government. The

Supremacy Clause, U.S. Const. art. VI, cl. 2, in-

validates that effort.” (A. 423.)

Although not involved in this case, it should be noted

that the ultimate scope of proprietary power is an un-

resolved issue involving difficult constitutional, statutory,

and contractual issues. See Opinion of the Justices, __

Mass. , 271 N.E.2d 354, 358-59 (1971). For example,

under the Supremacy Clause, an airport operator would

be barred from imposing a restriction on flight operations

which would stand “as an obstacle to accomplishment and

execution of the full purposes and objectives of Con-

gress.” Peres v. Campbell, 402 U.S. 637 (1971). Airport

restrictions on air commerce could also be vulnerable to

attack under the Commerce Clause or under grant agree-

ments between the proprietor and the federal government.

But the proprietary powers, whatever they may be, are

held by Lockheed, not by the City of Burbank.

O. The Scheme of Federal Regulation.

Pursuant to his broad statutory authority, the Admin-

istrator of the FAA has issued complex and detailed

operational rules and regulations which control the flight

5 ol aircraft and govern the use of the navigable airspace

(14 C.F.R. Parts 71-77, 91-97). The highlights of these

regulations, as applicable in this case, are described in

Findings 34, 35 and 38-47 (A. 385-89). Reference to these

regulations will confirm the correctness of the appraisal

made by Judge Dooling in American Airlines, Inc. v.

Town of Hempstead:

“The powers granted by the Congress are not

dormant but actively exercised. The regulations of

the Administrator are of formidable proportions,

impressive detail and manifest sophistication.” 272

F. Supp. 226, 232 (E. D. N. V. 1967), af d, 398 F.2d

369 (2d Cir. 1968), cert. denied, 393 U.S. 1017 (1969).

1. Regulations for Noise Abatement. The Administrator

has promulgated extensive regulations to carry out his

responsibilities in the field of noise abatement. See 14

C. F. R. § 91.87. These regulations have been promulgated

under the 1958 Act’s directive to prescribe air traffic

regulations “for the protection of persons and property

on the ground,” 49 U.S.C. § 1348 (e), and pursuant to the

authority conferred by the 1968 amendment to “provide

for the control and abatement of aircraft noise,” 49 U.S.C.

§ 1431.

The noise abatement regulations of the Administrator

embrace a wide range of flight techniques. For example,

in the interest of alleviating noise disturbances to the

residents of communities adjoining airports in metro-

politan areas such at Hollywood-Burbank, the Adminis-

trator has established regulations that require jet air-

craft to maintain an altitude of 1500 feet until further

descent is required for a safe landing and, when taking

off, to climb to 1500 feet as rapidly as practicable F. F.

55, A. 392). The Administrator has also prescribed 4

variety of noise abatement runway use ‘procedures to

avert aircraft from residential areas (A. 200-01, 308-09).*

And where possible, the FAA has developed standard

instrument departure procedures which are assigned be-

tween the hours of 11:00 p.m. and 7:00 a.m. in order to

reduce noise over populated areas. Such standard de-

partures are presently in effect at Los Angeles Inter-

national Airport. (F.F. 57, A. 393.)

The FAA is also employing its noise abatement author-

ity in the field of aircraft design and performance. On

November 18, 1969, the Administrator adopted regula-

tions prescribing noise standards which must be met

as a condition to type certification for all new subsonic

turbojet-powered aircraft. 34 Fed. Reg. 18355, now pub-

lished at 14 C.F.R. Part 36. Under the “acoustical

change” provision of these regulations, no currently certi-

ficated jet aircraft that exceeds the noise limits specified

for new type designs may be modified to increase its

noise over that of the parent airplane. On July 7, 1972,

the Administrator issued a Notice of Proposed Rule-

making that would require airplanes of older type design

produced after July 1, 1973 to comply with these Part

36 noise standards. In issuing this notice, the Adminis-

trator announced his determination that further aggrava-

tion of the aircraft noise problem involved in the con-

tinued production of older aircraft types “conflicts with

the longstanding policy of the FAA” and “counteracts

the acoustic benefit available from the introduction of

new technology aircraft.” The Administrator pronounced

this situation “unacceptable from an environmental man-

agement standpoint.” 37 Fed. Reg. 14814.

the noise abatement order le at Hollywood- -

Burbank was described in the Statement at page 13,

BSS

eee and will be discussed in the “conflict” section of

a pages 65-67, infra.

2. Regulation for Efficient Use of Navigable Airspace.

Especially pertinent to this case are the regulations

adopted by the FAA in pursuit of the statutory goal of

“efficient utilization” of airspace. 49 U.S.C. § 1348(a).

The importance of this goal is heightened by the con-

gestion of the navigable airspace in the vicinity of major

air terminals, which at times results in FAA controllers

“making use of all available airspace” in the Los Angeles

area (A. 193). This condition exists in part because the

services required by travelers and shippers frequently

exceed the capacity of the nation’s airport system (F. F.

48, A. 390). Congress recognized the emergence of this

problem as early as 1958 when it referred to the national

airspace as “a diminishing resource.” S. Rep. No. 1811,

at 13.

One set of regulations to insure efficient use of navi-

gable airspace involves centralized “flow control” pro-

cedures. Flow control is a means of metering aircraft

to meet any given traffic situation. By means of flow con-

trol restrictions, the FAA regulates the number of air-

craft that will be accepted in an area and restricts alti-

tudes or routes that may be flown for specified periods

of time. Thus, an FAA Air Route Traffic Control Center

receiving a flow control restriction becomes obligated to

(a) clear aircraft on specified routes; (b) establish sepa-

ration in time, altitude or distance; or (c) limit the num-

ber of departures in a given period by holding aircraft

on the ground. This situation can and does result in the

Los Angeles Center holding aircraft on the ground at

Hollywood-Burbank Airport. (F.F. 48-52, A. 390.91.)

The FAA has also promulgated high density traffic

airport rales which work in conjunction with flow control

procedures to provide relief at certain major airport

terminals in the United States. 14 CF. R. § 93.121-131.

<i sine

The Administrator exercised his plenary authority in

promulgating these rules to assure that the greatest num-

ber of persons would be efficiently transported during

periods when IFR operations were in effect (R. 262).

Pursuant to these rules, the hourly number of IFR oper-

ations (takeoffs and landings) is restricted to a specified

number at certain airports designated by the FAA. These

rules allocate varying numbers of IFR operations over

the entire 24-hour period. (F. F. 53, A. 391.) And in allo-

cating these IFR reservations, the Administrator specifi-

cally had in mind the noise disturbance that would result

from encouraging the scheduling of more flights after

10:00 p.m. (F. F. 54, A. 392; A. 360.)

The validity of the high density traffic airport rules

was challenged in Aircraft Owners and Pilots Associ-

ation v. Volpe, Civil Action No. 927-69, United States

District Court for the District of Columbia (unreported).

(A transcript of the oral argument and of the court’s

decision appear at pages 208-68 of the Record on Appeal

herein.) In that case District Judge Gesell upheld the

high density regulation as a proper exercise of the “plen-

ary authority” granted by the Act to the Administrator

to insure “efficient utilization” of the airspace (R. 261-67).

D. The Noise Oontrol Act of 1972.

On October 27, 1972, the President signed into law the

Noise Control Act of 1972 (“1972 Act”), Pub. L. No.

92-574, 86 Stat. 1234. Aircraft noise is regulated by

section 7 of the Act, which is set forth in Appendix A.

As we shall show, this section constitutes a further as-

sertion by the federal government of its dominance in

the field of the abatement of aircraft noise.

1. The New Statute. Under section 7(a) of the 1972

40 the Environmental Protection Agency (“EPA”) is

rected to conduct a comprehensive study of aircraft

noise problems, and report within nine months to the

appropriate committees of Congress. This subsection

provides:

“The Administrator [of EPA], after consultation

with appropriate Federal, State, and local agencies

and interested persons, shall conduct a study of the

(1) adequacy of Federal Aviation Administration

flight and operational noise controls; (2) adequacy

of noise emission standards on new and existing

aircraft, together with recommendations on the

retrofitting and phaseout of existing aircraft; (3)

implications of identifying and achieving levels of

cumulative noise exposure around airports; and (4)

additional measures available to airport operators

and local governments to control aircraft noise. He

shall report on such study to the Committee on Inter-

state and Foreign Commerce of the House of Repre-

sentatives and the Committees on Commerce and

Public Works of the Senate within nine months after

the date of the enactment of this Act.” [7(a).]

After completing its nine-month study, EPA is directed

to submit to the FAA proposed regulations for the con-

trol and abatement of aircraft noise. This direction is

contained in section 7(b) of the Act, which amends sec-

tion 611 of the Federal Aviation Act and reads in part

as follows:

“Not earlier than the date of submission of the

report required by section 7(a) of the Noise Control

Act of 1972, EPA shall submit to the FAA proposed

regulations to provide such control and abatement

of aircraft noise and sonic boom (including control

and abatement through the exercise of any of the

FAA’s regulatory authority over air commerce or

transportation or over aircraft or airport opera-

— oon

tions) as EPA determines is necessary to protect the

public health and welfare... .” [§611(c)(1).]°

The italicized reference in the above quotation to “the

FAA’s regulatory authority over air commerce or trans-

portation or over aircraft or airport operations” is a

notable confirmation that prior federal authority in this

field extends to regulation of “airport operations.” It

is a legislative affirmation of the court of appeals’ state-

ment:

“Pursuant to 49 U.S. C. 5 1431, the Administrator

of the FAA, after consultation with the Secretary of

Transportation, is to prescribe and amend such rules

and regulations as he may find necessary to provide

for the abatement of aircraft noise. Surely this does

not mean abatement of noise of aircraft flying at or

above 35,000 feet. That is not the kind of noise from

which the public needs ‘present and future relief

and protection... The statute gives the Admin-

istrator power to deal with noise that is offensive

to persons on the ground, including the noise created

by low-flying aircraft, takeoffs and landings, and

the noise created by aircraft on the ground at air-

ports.” (A. 422.)

Under the new Act, the Administrator of the FAA

retains final authority to prescribe or amend regulations

for the control and abatement of aircraft noise [4 611 (b)].

And he is to issue such regulations after considering the

recommendations of the EPA and in consultation with the

Secretary of Transportation [6 611 (b), (e) (1). The

regulations have as their statutory goal the protection of

“the public health and welfare from aircraft noise and

for the FAA’s consideration

neee

aborate procedure of the EPA

Appendix A, at 2-4.

Ee eee

sonic boom” [4 611(b)(1), (¢)(1)]. In issuing or amend-

ing these regulations, the Administrator is to consider

the same factors as previously set forth in 49 U.S.C.

61481 (b) quoted above at pp. 30-31 [§ 611(d)].

2, Legislative History of the 1972 Act. A review of

the congressional debates and reports on the Noise Con-

trol Act of 1972 shows a reaffirmation of the dominant

‘role of the federal government in the field of aircraft

noise abatement. The debates revolved primarily around

the respective roles of the FAA and EPA. During the

initial debate in the House on H.R. 11021, Representative

Rogers, House Floor Manager of the bill, urged that the

FAA be given the final authority for setting aircraft noise

standards, and the bill passed the House in accordance

with his position:

“The FAA should have final responsibility for

setting aircraft noise standards because a compre-

hensive and detailed knowledge of aviation tech-

nology and flight operations is essential to setting

achieveable standards.

“Final decision authority with respect to any

standards affecting the aviation industry can realis-

tically be vested only in an agency thoroughly know.

edgeable of all possible impacts and consequences.

The FAA is the only agency in Government which

has such knowledge. The FAA is taking regulatory

action as the state of the art will permit; its actions

will be advised upon and oversighted by EPA...

118 Cong. Rec. H 1513 (daily ed. Feb. 29, 1572).

In the Senate, the Public Works Committee reported

out a bill (S. 3342) placing primary responsibility for

mien 3

nila

promulgation of aircraft noise standards on the Admin-

istrator of the EPA. During its work on this bill, the

Senate committee had considered an action-forcing plan

which would have required an airport operator to adopt

and submit for EPA approval a plan to achieve certain

noise levels around airports. [S. 3342, § 502 (a), Comm.

Print. No. 6, June 14, 1972, reprinted im 118 Cong. Rec.

8 17759-60 (Oct. 12, 1972).] However, this provision

was abandoned by the committee in favor of the four-

point provision for study and recommendation by EPA,

as ultimately contained in section 7(a) of the 1972 Act.

8. Rur. No. 92-1160, 92d Cong., 2d Sess. 10 (1972) (here-

after S. Rur. No. 92-1160”) ; remarks of Senator Tunney,

118 Cong. Rec. S 17753 (Oct. 12, 1972).

The importance of the EPA study and its intended role

in an orderly national program were stressed by Senate

Manager Tunney. He emphasized that the EPA study

and recommendation “is not merely an extension of the

investigations on this subject performed by EPA as

required by title IV of the Clean Air Act Amendments

of 1970,” but “it is an effort to deal comprehensively

with” program for an urgent problem. Id. at S 17753.

The Senate version went back to the House on October

13, and the Senate and House versions were blended

together into the form in which the legislation was ulti-

mately enacted, with final authority to prescribe and

amend noise abatement regulations being retained by the

PAA. 118 Cong. Rec. H 10287-300 (Oct. 18, 1972). On

October 17, there was a colloquy between Representative

Staggers, Chairman of the House Commerce Committee,

and Representative Springer, ranking Republican on the

“@ommittee, in which they both pointed to the “chaos”

ulting from the local regulation which would ensue

in the absence of federal action. Id. at H 10239 (Oct. 17,

1972). In urging the House to accept the amended ver-

sion, Representative Staggers, Chairman of the House

Commerce Committee, gave the following rationale for

the bill:

“T cannot say what industry’s intention may be, but

I can say to the gentleman what my intention is in

trying to get this bill passed. We have evidence that

across America some cities and States are trying to

do [sic] pass noise regulations. Certainly we do not

want that to happen. It would harass industry and

progress in America. That is the reason why I want

to get this bill passed during this session.”* 118

Cong. Rec. H 10294 (Oct. 18, 1972).

After the House approved the new version of H.R.

11021, Senator Tunney moved that the Senate concur.

Making explicit the breadth of federal authority, he

stated that the regulations to be considered by EPA, for

recommendation to the FAA, would include:

“, .. proposed means of reducing noise in airport

environments through the application of emission

controls on aircraft, the regulation of flight patterns

and aircraft and airport operations, and modifica-

Fie ‘wos cagegod in K

said ho wanted “Wo be certain that the power of the, FAA to

maintained 118 Rec, H 10204 (Ost 18, 1972). Im-

tions in the number, freguency, or scheduling of

fights [as well as]. . the imposition of curfews

on noisy airports, the imposition of flight path alter-

ations in areas where noise was a problem, the

imposition of noise emission standards on new and

existing aircraft — with the expectation of a retrofit

schedule to abate noise emissions from existing air-

craft — the imposition of controls to increase the

load factor on commercial flights, or other reductions

in the joint use of airports, and such other pro-

cedures as may be determined useful and necessary

to protect public health and welfare.” 118 Cong.

Nec. S 18644 (Oct. 18, 1972).

Senator Tunney’s reference to the “imposition of cur-

fews” leaves no doubt that this technique, like the other

aspects of airspace management to which he referred, is

within the scope of the federal scheme.

In his signing statement, the President explained his

approval of the bill on the ground that “many of the most

significant sources of noise move in interstate commerce

and can be effectively regulated only at the federal level.”

8 Weekly Comp. of Pres. Docs. 1582, 1583 (Oct. 28, 1972).

The President’s statement closely parallels the finding

of Congress in section 2(a)(3) of the 1972 Act that “Fed-

eral action is essential to deal with major noise sources

in commerce control of which require national uniformity

‘ot treatment.”

. Appellants? Views on the New Act. As indicated

above, we believe that the Noise Control Act of 1972

“Strengthens the argument for federal preemption of the

‘field involved here. Curiously, the views of the City of

on the new Act seem diametrically opposed to

of the State of California as amicus in support of

Apparently referring to the rail and motor

carrier provisions, Burbank deseribes (Br. pp. 85-6) the

Noise Control Act of 1972 as the “ultimate intrusion”

into the state and local domain, and as part of an “in-

sidious trend.” Earlier in its brief (p. 22), Burbank

states that the approach of Senate bill S. 3342 “held

some promise of future relief,” but failed to survive.

And Burbank follows its A of the new Act by

asking the Court to “reexamine the preemption and con-

flict doctrines as presently enunciated” (Br. pp. 85-86),

thus demonstrating a plain though implicit recognition

on Burbank’s part that its curfew ordinance both con-

flicts with federal law and operates in an area preempted

by the federal government.

On the other hand, the State of California in its supple-

mental amicus brief (pp. 4-16) purports to find support

for Burbank’s case in the legislative history because the

. bill ultimately enacted did not contain an express pre-

emption provision which had appeared in the Senate bill.

A closer look at this matter shows, however, that the

history on this point in fact supports Lockheed’s position.

The bill which initially passed the House on February

29, 1972 (H.R. 11021) was designed not to change the law

with respect to federal preemption. The House Report

accompanying H.R. 11021 [H.R. Rep. No. 92-842, 92d

Cong., 2d Sess. 10 (1972)] states:

“No provision of the bill is intended to alter in any

way the relationship between the authority of the

Federal Government and that of State and local

governments that existed with respect to matters

covered by section 611 of the Federal Aviation Act

of 1958 prior to the enactment of the bill.”

The Senate bill (S. 3342) which came from the Com-

mittee on Public Works contained the following provision

as section 506:

—

No State or political subdivision thereof may

adopt or attempt to enforce any standard respecting

noise emissions from any aircraft or engine thereof

unless such standard is identical to a standard appli-

cable to such aircraft under this part.“

Vie

No similar provision was contained in the House bill.

Senate Report No. 92-1160 accompanying S. 3342 con-

tained the following explanation of section 506: -

“States and local governments are preempted from

establishing or enforcing noise emission standards

for aircraft unless such standards are identical to

standards prescribed under this bill. This does not

address responsibilities or powers of airport opéra-

tors and no provision of the bill is intended to alter

in any way the relationship between the authority of

the Federal Government and that of State and local

governments that existed with respect to matters

covered by section 611 of the Federal Aviation Act

of 1958 prior to the enactment of the bill.” Id, at

10-11.

Senator Tunney, the Floor Manager of the bill, made a

statement identical to the above quoted portion of the

Senate Report in his remarks presenting the bill to the

Senate. 118 Cong. Rec. S 17753 (Oct. 12, 1972).

On October 13, 1972, Senate Manager Tunney offered

a perfecting amendment which modified section 506 to

read as follows: ;

“No State or political subdivision thereof may

adopt or enforce any standard respecting noise emis-

Section 506 of the Senate bill was renumbered section 505

as the the Senate. 118 Rec. 8 17989

PO ee =

—_44—

sions from any aircraft or engine thereof.” 118

Cong. Rec. S 18013.

Senator Tunney gave the following explanation for the

change: a

“Section 506 is clarified to preclude States and

localities from enacting identical standards. This

added pressure was thought essential in the absence

of a tough and effective regulatory program. How-

ever, requirements of section 501 and enforcement

provisions in the legislation give sufficient tools to

accomplish a tough and coordinated enforcement

program on the Federal level. There was no inten-

tion in the committee bill to alter the relative powers

of the Federal Government, State and local govern-

ment, and airport operator, over the control of air-

craft noise. This amendment would also retain the

same powers for all parties.” 118 Cong. Rec. S 17989

(Oct. 13, 1972).

It appears that the Senate Floor Manager and the

Senate believed that they had stated the existing law

and preserved the status quo when they provided that

“no state or political subdivision thereof may adopt or

enforce any standard respecting noise emissions from any

aircraft or engine thereof.” No other meaning can be

fairly given to Senator Tunney’s statement that the Com-

mittee bill did not intend “to alter the relative powers

of the Federal Government, State and local government,

and airport operator,” and that the perfecting amend-

ment would “retain the same powers for all parties.” 118

Cong. Rec. S 17989 (Oct. 13, 1972).

Considered in that perspective, the omission of the

preemption provision in the melding together of the

House and Senate bills into the final version of the Act

does not have the meaning attributed to it by the State

of California.“ Since the preemption provision of the

Senate bill was regarded as codifying existing law,

neither its inclusion nor its ultimate omission was meant

to change the law. What is significant is that the Senate

believed that the preemption clause stated the existing

law —and more broadly, that Congress reaffirmed the

intensive federal control in this field.

E. The Tests for Federal Preemption Are Fully Met.

1. Standards for Preemption. In Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230 (1947), this Court

stated, in the disjunctive, the classic tests for determining

whether federal legislation has preempted a given field :

“fi] The scheme of federal regulation may be so

pervasive as to make reasonable the inference that

Congress left no room for the States to supplement

it. [ii] Or the Act of Congress may touch a field in

which the federal interest is so dominant that the

federal system will be assumed to preclude enforce-

The State of California also asserts (Supp. Br. PP. 16-18)

Faces federal encies — I * Gace

to comp

curfew ordinance. Section 4b of the 22 that

assumes the validity of the ordinance in question. Obviously,

section 4(b) of the Act requires only that federal facilities

comply with valid local requirements. .

fruitless is California’s reliance (Supp. Br. pp. 16-17)

the Act. Consistent with its authority under

) of

laws, the FAA is required to concern for the

with all the factors set forth in) U.S.C. 5 1303

in carrying out the programs er its control

ment of state laws on the same subject. Like wise,

the object sought to be obtained by the federal law

and the character of obligations imposed by it may

reveal the same purpose. [iii] Or the state policy

may produce a result inconsistent with the objective

of the federal statute.” (Citations omitted.)

This Court has continued to apply and rely upon

these three independent Rice tests in, for example, Penn-

sylvania v. Nelson, 350 U.S. 497, 502-09 (1956) ; Campbell

v. Hussey, 368 U.S. 297, 302 (1961) ; and Teamsters Local

v. Lucas Flour Co., 369 U.S. 95, 104 (1962). There are

of course situations such as those involved in Head v.

New Mezxico Board, 374 U.S. 424 (1963), and California

v. Zook, 336 U.S. 725 (1949), cited by Burbank (Br. pp.

36-37), in which the tests for preemption have been held

not to be satisfied. However, the standards prescribed

by Rice certainly cannot be said to involve the “mechan-

ical rules” which Burbank criticizes (Br. pp. 36-37).

Indeed, the Court in Rice emphasized, as did the court

below, the need for a careful scrutiny of the purpose of

Congress and the scheme of federal regulation.

2. Fulfillment of the Tests. The federal regulatory

scheme, summarized supra at pages 33-37, demonstrates

a complete occupation of the fields of airspace manage-

ment, and regulation of aircraft operations and aircraft

noise. As both of the courts below held, each of the three

tests for preemption laid down in the Rice case is inde-

pendently met.

Applying the first Rice test, the district court found,

and the court of appeals confirmed, that the federal

scheme is so pervasive as to leave no room for localities

such as Burbank to impose their own brand of regulation.

See ee

(FF. 58, A. 398; C.L. 14, A. 404; A. 417.) The compre-

hensive federal authority contained in the Federal Avi-

ation Act of 1958 was buttressed by the specific authority

of the 1968 Aircraft Noise Abatement Amendment and,

more recently, by the Noise Control Act of 1972. Taken

together, the statutes indicate that Congress intended

to confer “plenary” authority on the federal agencies to

deal with airspace management, aircraft noise abatement,

and aircraft operations.

Under the statutory directive to insure “the safety of

aircraft and the efficient utilization” of the navigable air-

space, 49 U.S.C. § 1348(a), and “to provide for the con-

trol and abatement of aircraft noise,” 49 U.S.C. § 1431,

the Administrator has promulgated regulations that are

truly of “formidable proportions, impressive detail, and

manifest sophistication” (C.L. 8, A. 403).

Noteworthy regulations in the field of airspace man-

agement are the high density traffic airport rules and the

system of “flow control” (C.L. 9-10, A. 403). These regu-

lations demonstrate that effective airspace management

requires federal controls on the hours and times of oper-

ations at the nation’s airports. The high density traffic

airport rules affect airline scheduling by limiting, over

the entire 24-hour period, the number of IFR operations

at affected airports (F. F. 53, A. 391-92). And under the

centralized flow control system, aircraft can be held on

the ground at airports in order to reduce airborne delays

and congestion (F. F. 51-52, A. 390-91).

Perhaps even more significant here are the FAA’s

aircraft noise abatement regulations, including (1) regu-

lations regarding minimum altitudes and rate of climb,

Finding 55, A. 392; (2) noise abatement runway orders,

Finding 56, A. 392-98; (3) standard instrument depar-

tures to avoid residential areas, Finding 57, A. 393; (4)

regulations regarding the noise characteristics of new

aircraft and of modifications of existing aircraft, 14

C.F.R. Part 36; and (5) proposed rules to apply Part 36

noise standards to newly produced models of older type

designs, 37 Fed. Reg. 14814. These regulations show a

federal purpose to probe all feasible avenues to curb air-

craft noise.

In sum, the federal statutes and regulations in the

area of airspace management and aircraft noise abate-

ment are so pervasive as to compel the conclusion that

states and local governments may not superimpose on

the federal scheme a limitation on the hours during which

certificated air carriers may have access to the navigable

airspace.

It is equally apparent that preemption has occurred

within the meaning of the second Rice test, i. e., the act

of Congress “touches a field” in which the federal interest

is so dominant that the federal system will be assumed

to preclude enforcement of state laws on the same sub-

ject. (C.L. 15, A. 404; A. 417.) National rather than local

control of interstate surface transportation has long been

the policy of Congress (see City of Chicago v. Atchison,

Topeka d Santa Fe Railway, 357 U.S. 77, 87 (1958)).

Even more clearly established is the longstanding na-

tional interest in control by the federal e over

all aspects of air transportation.

The authoritative Senate Report which accompanied

the Federal Aviation Act of 1958 states that in adopting

this Act Congress recognized that “aviation is unique

among transportation industries in its relation to the

Federal Government — it is the only one whose opera-

tions are conducted almost wholly within the Federal

jurisdiction, and are subject to little or no regulation by

States or local authorities. Thus, the Federal Govern-

ment bears virtually complete responsibility for the pro-

motion and supervision of this industry in the public

interest. . .” S. Ber. No. 1811, at 5.

The evidence adduced in this case demonstrates that

air transportation calls for regulation of an even more

penetrating, uniform, and exclusive nature than is nec-

essary for any other mode of transportation (F. F. 59,

A. 394; C. L. 15, A. 404). Briefly summarized, this evi-

dence shows that the national air transportation system

involves a degree of complexity unknown to other forms

of transportation. Each element of the system — the air-

port complex, the air traffic control system, and the air-

craft fleet — is dependent upon and interacts with the

other components (A. 257-59). Aircraft scheduling, for

example, involves the intricate meshing of inter-connect-

ing flights with aircraft maintenance and crew problems

(A. 230-31, 260-62, 264-65). And each day a single air-

craft may operate into and from many airports in several

states while overflying many other political jurisdictions

(A. 258).

Finally, application of the third Rice test — whether

the local regulation would produce a result inconsistent

with the objective of the federal law — makes it equally

clear that the Burbank curfew ordinance must fall before

the extensive federal legislation and regulations. Ful-

fillment of this test, which is closely related to the conflict

issue, is clearly seen when the Burbank curfew ordinance

is considered in light of the federal noise abatement pro-

visions. The ordinance would make a nullity of the FAA

noise reduction order which established a preferential

runway system for departures from Hollywood-Burbank

between 11:00 p.m. and 7:00 a.m. The ordinance would

=~ §3 —

thus be inconsistent with the responsibility of the FAA

to determine the balance between the competing interests,

Moreover, enforcement of the Burbank ordinance would

be inconsistent with the FAA’s duty to secure the “effi.

cient” as well as the safe use of airspace. The district

court concluded that local imposition of curfews would

cause a “very serious loss of efficiency,” with the result

that the statutory objective would be “compromised”

(C.L. 16, A. 404). The scheduling of commercial aircraft

flights is an almost incredibly complex operation, requir-

ing maximum flexibility and expert use of the available

time and space. As the Findings indicate, denial of in-

gress into the navigable airspace for one-third of the

available hours would constitute a severe hindrance to

the operation of the national air transportation system

(F. F. 70-82, A. 397-400). In addition, the imposition of

curfews would have the inevitable effect of increasing

congestion in the remaining hours available (F. F. 78,

A. 399). &

The inconsistency of a local curfew ordinance with

the federal objective is confirmed by previous FAA action

in rejecting proposed air traffic rules which would have »

placed a limitation on the use of an air carrier airport

between 10:00 p.m. and 7:00 a.m. In refusing to impose

such a restriction at Los Angeles International Airport,

the Administrator stated the following reasons:

“The practice of prohibiting the use of various

airports during certain specific hours ceuld create

critically serious problems to all air transportation

patterns. The network of airports throughout the

United States and the constant availability of these

airports are essential to the maintenance of a sound

air transportation system. The continuing growth .

—

of public acceptance of aviation as a major force in

passenger transportation and the increasingly sig-

nificant role of commercial aviation in the nation’s

economy are accomplishments which cannot be in-

hibited if the best interest of the public is to be

served. It was concluded therefore that the extent

of relief from the noise problem which this provision

might have achieved would not have compensated

the degree of restriction it would have imposed on

domestic and foreign Air Commerce.” 25 Fed. Reg.

1764-65 (Mar. 1, 1960).

F. Prior Decisions Support the Holding of Federal

Preemption.

Earlier decisions in this and related fields support the

holding of federal preemption. We will discuss first the

aviation precedents in the lower federal courts and state

courts, and then turn to the decisions of ‘this Court in

related fields.

1, Lower Federal Decisions. Closely in point is Amer-

ican Airlines, Inc. v. City of Audubon Park, Kentucky,

297 F. Supp. 207 (W.D. Ky. 1968), aff’d, 407 F.2d 1306

(6th Cir. 1969), cert. denied, 396 U.S. 845 (1969), where

the court invalidated an ordinance making it unlawful to

fly any aircraft over the corporate limits of the City of

Audubon Park at a height of less than 750 feet. The court

concluded that “the statutes enacted by the Congress

clearly expressed an intent fully to preempt the field of

law and regulation of interstate and foreign air traffic.”

297 F. Supp. at 212. This holding was affirmed per curiam

by the Sixth Circuit. 407 F.2d 1306 (1969).

Perhaps the most comprehensive discussion of the

deral preemption issue prior to this case is contained

tthe district court's opinion in American Airlines, Inc.

—54—

v. Town of Hempstead, 272 F. Supp. 226 (E. D. N. V. 1967),

where the court held that the pattern of federal regula.

tion invalidated the Town’s ordinance seeking to regu-

late aircraft noise levels. The district court found that

the ordinance operated to forbid noise only by forbidding

flight, and, as such, operated in a preempted area. Id. at

230-31. The court said:

“It would be difficult to visualize a more compre.

hensive scheme of combined regulation, subsidiza-

tion and operational participation than that which

the Congress has provided in the field of aviation.

“

“For present purposes it is enough to note that the

FAA prepares and publishes approach procedures

and standard instrument departures (SIDs) for Ken-

nedy Airport which are provided to pilots and, taken

with the elaborate flight manuals approved by the

FAA and carried in each plane, standardize every

material element of a commercial airline take-off or

landing including flight path, glide slope on landing

and, within limits, climb-out procedure. Every such

take-off and landing is a moving part in a vast com-

plex of regional aircraft traffic control that invalves

transfer of atrcraft from one FAA manned control

center to another until the aircraft is safelanded on

the runway or en route out of the area. The weft of

federal airways and electronic navigational aids

mapped on the airmen’s charts is a record of the

elaborateness, complexity and immediacy of the fed-

eral provisions of aids to and controls ‘of air traf-

“The federal regulation of air navigation and air

traffic is so complete that it leaves no room for such

local legislation as the Hempstead Ordinance. .. .”

Id. at 232-33.

The FAA prepares and publishes approach and de-

parture procedures for Hollywood-Burbank Airport, just

as in the case of Kennedy Airport (F.F. 43, A. 387; F. F.

46, A. 389). These procedures, taken together with the

FAA approved flight, manuals, “standardize every

material element of a commercial airline takeoff” at

Hollywood-Burbank Airport (F. F. 41-47, A. 386-89). As

in the Hempstead case, these elaborate and complex fed-

eral regulations leave no room for local attempts such as

that of the City of Burbank to intrude on the federal

domain of airspace management.

In the Hempstead case, the district court also found

that the ordinance of the Town of Hempstead was in con-

flict with the federal action in the area. After citing

direct conflicts between FAA landing and takeoff pro-

cedures and the requirements of the ordinance, the court

stated :

“The conflict, however, is also subtler. Local

initiative in noise control of aviation is inherently an

effort to regulate a consequence while disclaiming

regulation of the cause. It cannot coexist with a

comprehensive system of federal regulation of air-

craft manufacture (through certificates of airworthi-

ness) and federal regulation of air navigation and

air traffic.” Id. at 235.

On appeal, the decision of the district court was

affirmed on conflict grounds. 398 F. 2d 369 (2d Cir. 1968).

This Court denied certiorari. 398 U.S. 1017 (1969).

eA ics

A very recent illustration of federal supremacy in this

field is United States v. City of New Haven, 447 Fd

972 (2d Cir. 1971), which involved a dispute between the

Town of East Haven and the City of New Haven as air.

port operator over acquisition by New Haven of land for

use as a “clear zone” at the end of an extended runway,

The runway had been extended pursuant to federal grant

agreements between the airport and the FAA to facilitate

the use of jet aircraft. Although the runway extension

was within the City of New Haven, the City purchased 73

acres in Bast Haven as the “clear zone.” The Connecti-

out Supreme Court ruled that New Haven had not ob-

tained the land in East Haven in accordance with Con.

necticut law. It ordered New Haven to cease operating

the runway at its extended length and thereby using the

“clear zone” it had improperly acquired.

The United States obtained a preliminary injunction

in the federal district court restraining the enforcement

of the state court order and directing that East Haven

move the Connecticut court for dissolution of its order.

The court of appeals upheld the federal court injunction

on the basis of the supremacy of federal control over

use of the navigable airspace. The court said:

“Under the Federal Aviation Act of 1958 (49 U.S.C.

§ 1301 et seq. as amended) the United States has

asserted that it possesses and exercises ‘complete

and exclusive national sovereignty in the airspace

of the United States.’ 49 U.S.C. § 1508(a). . . . State

legislation purporting to deny access to navigable

air space would therefore constitute a forbidden

exertion of the power which the federal government

as asserted.” 447 F.2d at 973. 5

on an

This result followed the pattern established in one of

the earliest cases, Allegheny Airlines, Inc. v. Village of

Cedarhurst, 132 F. Supp. 871 (E.D.N.Y. 1955). There, the

district court held that the comprehensive scheme of. the

1938 Civil Aeronautics Act, the predecessor of the Fed-

eral Aviation Act of 1958, and the regulations adopted

pursuant thereto, “have regulated air traffic in the navi-

gable airspace in the interest of safety to such an extent

as to constitute preemption in that field... . 132 F. Supp.

at 881. As a consequence, the court struck down an ordi-

nance, enacted by a town adjacent to New York’s Idle-

wild Field, prohibiting flights over the town at an alti-

tade of less than 1000 feet. The court of appeals affirmed.

288 F. 2d 812 (2d Cir. 1956).

Thus for some 17 years the district courts and courts

of appeals have uniformly struck down local ordinances

attempting to regulate aircraft operations or use of

navigable airspace and, when asked, this Court has de-

clined to review those decisions.

2 State Court Decisions. In the recent decision in

Opinion of the Justices, Mass., 271 N.E. 2d

354 (1971), the highest court in Massachusetts held in-

valid proposed legislation which would prevent non-

conforming supersonic airplanes from landing or taking

off anywhere in Massachusetts if the noise they emitted

@eeeded a specified level. The justices found the pro-

bed law, which was based upon police power and not

power, invalid under the Supremacy Clause:

he principles expressed in that [Hempstead]

‘ease and the comprehensive character of the Federal

ir statutes and regulations, existing even prior to

168, lead us to conclude that the proposed Massa-

chusetts legislation would intrude upon an area pre-

empted by the Congress.” 271 N.E. 2d at 358.

The lower state court cases of Stagg v. Municipal

Court, 2 Cal. App. 3d 318, 82 Cal. Rptr. 578 (1969), and

Township of Hanover v. Town of Morristown, 108 N.J.

Super. 461, 261 A.2d 692 (1969), cited by Burbank (Br.

p. 32) are inapposite.

Stagg involved a curfew regulation adopted * the

proprietor of the Santa Monica Municipal Airport, which

serves no scheduled commercial air traffic. Therefore,

that case is not analogous to the attempt of Burbank to

regulate with its police power an airport which it neither

owns nor operates and where there are scheduled inter-

state and intrastate operations. Moreover, the Stagg de-

cision was rendered without any consideration of the

important 1968 Amendment to the Federal Aviation Act,

49 U.S.C. § 1431, the accompanying legislative history,

or any of the recent noise control measures taken by

the FAA.

The case of Township of Hanover v. Town of Morris-

town, 108 N.J. Super. 461, 261 A.2d 692 (1969) (cited by

Burbank at Br. pp. 32, 60, 77), appears also to have been

decided without considering the 1968 Amendment to the

Act and the accompanying regulatory developments. In

that case the trial court was asked to enden a planned

expansion of a small, noncommercial airport and oertain

operational features of that airport. It did issue an ex-

perimental” injunctive order requiring a jet curfew, after

finding no preemption by the federal government, at least

where no scheduled, certificated carriers were involved.

261 A.2d at 701. However, on July 17, 1972 the United

States filed an action in the federal court in New Jersey

to compel the dissolution of the state court-imposed cur-

few. United States v. Town of Morristown, Civil No.

1214-72, D. N. J.“

And of course both the Stagg and Morristown cases

were decided before passage of the important Noise

Control Act of 1972, Pub. L. No. 92-574 (Oct. 27, 1972),

which reaffirmed the intensive federal control over air-

craft noise abatement. . ‘

As it did in the court of appeals, Burbank has attempt-

ed to supplement the record in this case by appending

and relying upon the FAA’s response to the Petition of

Jordan A. Dreifus. (Br. p. 41, et seg.; App. to Br. p. 4.)

That petition, which was turned down by the FAA, re-

the federal government to impose a night curfew

at the Santa Monica Airport. The FAA’s response in

Dreifus relied heavily on the fact that the City of Santa

Monica is the proprietor of the Santa Monica Airport, a

circumstance to be contrasted with the fact that Burbank

is not the proprietor of Hollywood-Burbank Airport.

And it is Lockheed, not Burbank, that is regulated by the

terms of the airport operating certificate issued by the

Administrator of the FAA pursuant to 49 U.S.C.

§ 1432(a). Moreover, as indicated in the discussion of

‘the Stagg case, Santa Monica is a general aviation air-

port with no scheduled operations, whereas Hollywood-

aspects

A at Lie Cal, Rpt at 614), the decision

j 1431, * the our fat ise roa — —

1 su t noise contro *

sim: for injunctive relief was denied in for

Ales v. Volpe, 344 F. Supp. 573 (E.D, Va. 1972), appeal

Burbank Airport is a key satellite airport with scheduled

interstate and intrastate operations serving more than

one million passengers annually.

Most significant, however, are the comments of the

FAA on Dreifus which are contained in the FAA’s amicus

brief in the court of appeals. After pointing out the dis-

tinctions discussed above between the Santa Monica and

the Hollywood-Burbank situations, the FAA's brief

states:

“Tt is important to bear in mind that the Dreifus

opinion stemmed from a request for Federal regula-

tory action of a type which the FAA considered as

not being appropriate. (Appendix to Brief of Appel-

lants at 12.) The FAA in the Dretfus opinion did not

endorse the Santa Monica type curfew ordinance or

intend by its action to encourage a multiplication of

such restrictions on airport use by state and local

governments, whether or not they acted as propri-

etors.... The FAA filed its brief amicus curiae in

this case because it realizes that the proliferation

of this type of local ordinance would stagnate and

destroy the national air transportation system.”

FAA Brief in Court of Appeals at 25.

3. The Supreme Court Precedents. The decisions of

this Court referred to by Burbank are not inconsistent

with the decision below. The case of Huron Portland

Cement Co. v. Detroit, 362 U.S. 440 (1960) (cited by Bur-

bank at Br. pp. 47-48), is distinguishable on the grounds

stated by the Ninth Circuit:

“There, Detroit was allowed to apply its Smoke

Abatement Code to a vessel which had federally

inspected and approved boilers. The Court found

that the purpose of the federal inspection laws was

nin on

‘glearly limited to affording protection from the

perils of maritime navigation.’ Id. at 445. On the

other hand, the purpose of the city regulation was

the control of air pollution for the health and welfare

of its inhabitants. Id. at 442. Since these purposes

were not conflicting and there was no overlap of

scope between them, there was no preemption. .. .”

(A. 419.)

In contrast to the situation in Huron, here, said, the

court of appeals, Congress has vested the FAA with the

responsibility and authority to balance “considerations

of safety, efficiency, technological progress, common de-

fense and environmental protection in the process of

formulating rules and regulations with respect to the use

of the nation’s airspace” (A. 419). This balancing process

was demonstrated in the FAA’s refusal to impose re-

strictions on the use of Los Angeles International Air-

port between 10 p.m. and 7 a.m. On that occasion the

Administrator concluded that the extent of relief from

the noise problem achieved by such a limitation “would

not have compensated the degree of restriction it would

have imposed on domestic and foreign Air Commerce.”

25 Fed. Reg. 1765 (Mar. 1, 1960).

Moreover, the FAA’s authority and responsibility to

balance the safe and efficient use of the nation’s airspace

with environmental considerations, which was empha-

sized by the Ninth Circuit, has subsequently been under-

scored by the passage of the Noise Control Act of 1972.

Under the new Act the Administrator of the FAA is

vested with the final authority to prescribe regulations

for the control and abatement of aircraft noise [4 611(b) J.

And he is to issue such regulations after considering

the recommendations of the Environmental Protectior

‘Agency IL 611(b),(c)(1)]. This regulatory process |

7 i 3

as its statutory goal the protection of the “public health

and welfare [§ 611(b)(1), (c)(1)]. As noted by the Ninth

Circuit, the delicate balance achieved by the FAA under

the aegis of federal law” should not and must not be upset

by local regulation which is overprotective of one of the

multiple values balanced in the national interest (A. 419),

There is no merit to Burbank’s contention (Br. pp.

71-73) that federal preemption of aircraft noise regula.

tion somehow requires a reversal of this Court’s opinion

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

Griggs case held that because the airport proprietor

determines the location of the airport and its runways,

it is liable if flights to or from the airport are found to

constitute a “taking” under the Fifth and Fourteenth

Amendments.* However, Burbank could not incur the

kind of liability imposed in Griggs because it is not the

airport operator. In any event, the Griggs case involved

totally different issues than the invalidation of Burbank’s

attempt to use its police power to regulate aircraft oper-

ations and aircraft noise.

Colorado Anti- Discrimination Comm’n v. Continental

Air Lines, Inc., 372 U.S. 714 (1963), cited by Burbank

(Br. pp. 44, 82), is also inapplicable. There the Court

held that the Federal Aviation Act does not express al

intention to preempt state anti-discrimination legislation.

The Court, assuming that the Civil Aeronautics Board

had power to bar racial discrimination with respect to

customers and employees, found that the enforcement of

a Colorado statute to bar racial discrimination in hiring

would belatedly invoke, involved. Id. Virginians for Dulles

v. Volpe, 344 F. Supp. 573, 7879 (ED a. 1972), appeal

py air carriers did not frustrate the purpose of the federal

legislation “at least so long as any power the Civil Aero-

nauties Board may have remains ‘dormant and unexer-

cised.’ . . .” 372 U.S. at 724 (footnote omitted). The

Court noted that a different situation would be presented

“if the federal authorities seek to deal with discrimina-

tion in hiring practices and their power to do so is up-

held.” Id. at 724 n. 22. In tlie instant case the FAA clearly

has the power to act in the area in question, and has done

80 through its regulation of airspace management and

aircraft noise, as summarized at pp. 10-14, 33-37, supra.

Equally inapposite are cases such as Braniff Airways

v. Nebraska State Board, 347 U.S. 590 (1954) (cited by

Burbank at Br. pp. 33-34), where the Court found that

state power to tax aircraft had not been preempted by the

predecessor of the Federal Aviation Act of 1958. The

court below did not find that the federal government has

preempted every conceivable aspect of aviation. The

preemption in question relates to the management of air-

space and the regulation of aircraft operations and air-

craft noise. It is the attempted invasion of those specific

areas which invalidated the Burbank ordinance.“

Head v. New Mexico Board, 374 U.S. 424 (1963) (cited

by Burbank at Br. pp. 35-36), simply held that the nature

of the regulatory power given the FCC was not sufficient

to indicate a congressional intention to preempt all the

detailed state regulation of professional advertising prac-

* Similarly, P

inconsistent with Court’s ruling in Pawnee

(oe) hot the Dist. v. Delta Airlines, Inc., 405 US. 7

De o to preempt state power to levy charges designed to help

the costs of ai construction and maintenance. Id. at

I. The preemption here relied upon does not extend to that

_ venue raising area.

292

—

‘nie ee

tices, “particularly when the grant of power to the Com.

mission was accompanied by no substantive standard

other than the ‘public interest, convenience, and neces:

sity. » 374 U.S. at 431. That case is not analogous to

the present situation where the FAA, guided by carefully

articulated statutory standards, has adopted comprehen.

sive regulations governing aircraft operations, the use of

the navigable airspace and aircraft noise.

Rice v. Chicago Board of Trade, 331 U.S. 247 (1947)

(cited by Burbank at Br. pp. 48-49), was a companion

case to Rice v. Santa Fe Elevator Corp., 331 U.S. 218

which was relied upon by the court below as setting forth

the standards by which preemption is to be determined

Board of Trade considered the preemption aspects of 3

different statute, and the Court merely determined that

the Commodity Exchange Act, unlike the United States

Warehouse Act considered in Santa Fe Elevator, did

not evidence a congressional intent to make its regu-

latory features exclusive in the area. This decision is

completely in accord with the ruling below.

Il. THE BURBANK CURFEW ORDINANCE IS

IN CONFLICT WITH FEDERAL LAW.

Even absent federal preemption of an area, a local

ordinance which has the effect of bringing local and

federal policies directly into conflict must bow to the

supremacy of national enactments. See, e. g., Perez v.

Campbell, 402 U. S. 637, 649 (1971); Sears, Roebuck & Co.

v. Stiffel Co., 376 U.S. 225, 230-31 (1964). The test for

the existence of such a “conflict” was stated in Perez as

follows:

“Three decades ago Mr. Justice Brack, after re

viewing the precedents, wrote in a similar vein that,

while [tjhis Court, in considering the validity of

onion

state laws in the light of treaties or federal laws

touching the same subject, hald] made use of the

following expressions : conflicting ; contrary to; occu-

pying the field; repugnance; difference; irreconcil-

ability; inconsistency; violation; curtailment; and

interference[,] . . . Iiln the final analysis,’ our func-

tion is to determine whether a challenged state sta-

tute ‘stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Con-

gress.’ Hines v. Davidowitz, 312 U.S. 52, 67 (1941).”

402 U.S. at 649. -

As we shall show, the Burbank ordinance stands as an

obstacle to the accomplishment of the full purpe+s and

objectives of Congress in several respects.

A. The Curfew Ordinance Conflicts With the FAA

Nighttime Noise Abatement Order.

Prior to enactment of the Burbank curfew ordinance,

the FAA took in hand the subject of nighttime takeoffs

at Hollywood-Burbank Airport and acted to minimize

the consequences of those operations by issuing the noise

abatement order summarized in Finding 56 (A. 392).

This order (BUR 7100.5B), which was issued by the FAA

Chief of the Burbank Air Traffic Control Tower, estab-

lishes a preferential runway for departures of jet aircraft

between the hours of 11:00 p.m. and 7:00 a.m. In issuing

this order the responsible federal official announced his

determination that the noise abatement procedures which

it established were “designed to reduce community expo-

sure to noise to the lowest practicable minimum” (PX

The court of appeals held that the Burbank ordinance

walid because of the “conflict” between the ordinan

the FAA’s order: )

—6—

“This assertion represents a considered determi.

nation by an authorized representative of the FAA

that measures of the magnitude of that taken by th

City of Burbank are beneath ‘the lowest practicable

minimum.’ The municipal curfew ordinance, there.

fore, interferes with the balance set by the FAA

among the interests with which it is empowered tp

deal, and frustrates the full accomplishment of th

goals of Congress.. (A. 426-27). (Footnote

omitted.)

Burbank has attempted to minimize the importance of

this conflict by referring to the FAA’s order as “non

mandatory” (Br. pp. 51, 52). The record is to the con

- trary. Based upon testimony of the Burbank Airport

Tower Chief,“ the trial judge found that in accordance.

with this order, “the preferential runway is assigned by

the FAA control tower [between 11:00 p.m. and 7 :00 a.m]

by incorporation into an aircraft’s departure clearance

as an instruction to the pilot” (F.F. 56, A. 393). And

any person violating an air traffic control clearance or

instruction is subject to a civil penalty and to suspension

or revocation of his airman’s certificate. See 49 U.S.C.

§§ 1429, 1430(a)(5), 1471; 14 C.F.R. § 91.75. The testi-

mony showed that the preferential runway established

by the order was used except for a “few occasions” when

the control tower permitted deviation because of unusual

weather or operating conditions affecting safety. A. 318,

322-23.

* Burbank’s effort to diminish the order by labelling the

Tower Chief as “a minor FAA official” (Br. p.18) is answered

by the Ninth Circuits observation:

“No is raised as to the authority of the Chief of

the Tower to issue this order, nor is there doubt as to it

official character.” (A. 426.)

Burbank also tries to discount the FAA’s nighttime

noise abatement order at Burbank by contending (Br.

pp. 41-43) that the Dreifus opinion indicated FAA ap-

proval of the curfew technique. As pointed out above,

the Dreifus opinion related to the possible imposition of

a curfew by an airport proprietor at a general aviation

airport with no federally certificated, scheduled air car-

rier operations. The most recent expression of the FAA

on this subject is contained in its amicus brief in the

court of appeals, where the FAA states (p. 25) that in

Dreifus it “did not endorse the Santa Monica type curfew

ordinance or intend by its action to encourage a multi-

plication of such ‘restrictions on airport use by state and

local governments, whether or not they acted as pro-

prietors.”

Nothing suggested by Burbank can gainsay the fact

that the ordinance would make the FAA order a nullity

and go beyond the noise abatement measures determined

by the FAA to constitute “the lowest practicable mini-

mum.” In doing so, the ordinance “interferes with the

balance set by the FAA among the interests with which

it is empowered to deal, and frustrates the full accom-

plishment of the goals of Congress” (A. 426-27).°

* The State of California as amicus seeks to uphold the Bur-

bank ordinance by making the unsupported assertion that the

curfew serves to implement national environmental policy (Br.

17). However, the trial court found on the basis of uncontra-

evidence that curfew ordinances would actually vate,

not relieve, the noise problem b bunching — 2

er section 202 (b) of the

Act of 1970, 42 U.S.C.

nature of Con-

B. The Ourfew Ordinance Interferes With the Un

of Navigable Airspace.

The court of appeals recognized a second ground of

conflict between the Burbank curfew and federal lay,

Under the Federal Aviation Act, the United States js

declared “to possess and exercise complete and erch

sive national sovereignty in the airspace of the United

States.” 49 U.S.C. §1508(a). The Act declares that

“there is recognized and declared to exist in behalf

of any citizen of the United States a public right of

freedom of transit through the navigable airspace of

the United States.” 49 U.S.C. § 1304. The circuit court

held that “the effect of the curfew was to terminate

the right of flight of prospective passengers” through

a portion of the airspace for one-third of the houn

of every day (A. 427 n. 12).“ This holding is clearly

in accord with this Court’s recognition that such local

prohibition of a federally guaranteed right must fall

before the Supremacy Clause. Sperry v. Florida en

rel. Florida Bar, 373 U.S. 379, 385 (1963).

It provides no answer to this conflict point for Burbank’

to argue that only 80 passengers were boarding the flight

terminated by the curfew. If local power to enforce such

The district court fo

bank ordinance conflicts [with the federally certificated

rights and obligations of air carriers and is therefore

void under the Supre Clause (F. F. 82, A. 400; C. L.

17, A. 404). This holding is spelled out in Conclusion

of Law 17:

“Rach federally certificated air carrier is author-

ized and obligated by statute and by its Certificate

of Public Convenience and Necessity to provide ade-

quate service over its specified routes. Certificates

of Public Convenience and Necessity held by the

interstate air carriers cannot be revoked unless

the carrier fails to comply with an order of the CAB

requiring obedience to a federal rule found to have

been violated. [49 U.S.C. §1371(g)] The Burbank

curfew ordinance, by imposing a local veto for a

period of hours over use of the navigable airspace,

constitutes a restriction on carriers in fulfilling their

statutory duty and is tantamount to a partial sus-

pension of the Certificates of Public Convenience

and Necessity issued to interstate air carriers oper-

ating out of Hollywood-Burbank Airport. Said ordi-

nance is therefore in direct conflict with federal law

and is void under the Supremacy Clause (Art. VI,

Para. 2) of the United States Constitution.” (A.

404-05.)

The testimony and conclusion that the Burbank ordi-

nance constitutes a restriction on federally conferred

tights brings this case squarely with Castle v. Hayes

Freight Lines, Inc., 348 U.S. 61 (1954). There the Court

held that where an interstate motor carrier holds a

Pertificate of Convenience and Necessity issued by the

Interstate Commerce Commission under the Federi

Motor Carrier Act, the federal Supremacy Clause pn.

vents a state from suspending the carrier’s right 6

use the state’s highways in its interstate operation

as punishment for repeated violations of state highway

regulations. In the present case, it is equally clear tha

the Burbank ban on jet takeoffs is a restriction on th

interstate air carriers which operate at Hollywood

Burbank Airport and is tantamount to a partial suspen

sion of their Certificates of Public Convenience and

Necessity.

Burbank attempts to minimize this conflict by assert

ing (Br. p. 53) that certificates of public conveniene

and necessity issued to air carriers under 49 USC.

§ 1371 merely authorize the carrier to engage in air

transportation. But it is precisely this federal authori.

zation that Burbank seeks to negate by local ordinance,

Moreover, the carriers are required by their certificates

to provide “adequate service,” 49 U.S. C. § 1374(a), whieh

early in the jet age was held to require service by jet

aircraft. See Fort Worth Investigation, 31 CAB Rur

803 (1960).

Burbank also argues (Br. p. 54) that “local airport

authorities” must be persuaded to accept the service

authorized by the CAB. But Burbank is not the local

airport authority. That position belongs to the appellee

Lockheed. Moreover, Burbank had an opportunity to

advise the CAB of its views at the time additional serv-

ice at Hollywood-Burbank Airport was being gonsidered

And Burbank advised the Board as follows:

“What we are interested in is gaining service at

Hollywood-Burbank Airport for the citizens of the

City of Burbank and the more than two and one-

—71—

half million residents of Los Angeles County who

find Hollywood-Burbank Airport more conveniently

accessible than the over-crowded facilities at the

Los Angeles International Airport. We therefore

urge that the applications of any carrier or car-

riers who are ready, willing and able to provide

service at Hollywood-Burbank Airport to and from

points in the Pacific Northwest and in particular,

Portland, Oregon and Seattle, Washington, be heard

and considered.” (PX 36, A. 476-77.)

The Board has issued its certificate of public conve-

nience and necessity authorizing the service requested

by Burbank. The local ordinance which would restrict

this federally certificated right must fall before the

Supremacy Clause.

N. THE BURBANK CURFEW ORDINANCE

VIOLATES THE COMMERCE CLAUSE.

The Commerce Clause, Article I, section 8, clause 3,

confers upon Congress the power to regulate interstate

and foreign commerce. We have summarized above the

comprehensive legislation, enacted pursuant to this

power, to deal with airspace management, aircraft oper-

ations and aircraft noise abatement. Even without such

congressional action, however, the Commerce Clause

protects the national commerce from hostile actions of

state or local governments. And it has been so held for

over a century. See Southern Pacific Company v. Ar

gona, 325 U. S. 761, 769 (1945); Morgan v. Virginia, 328

US. 373, 378-79 (1946).

“The Court in Southern Pacific restated the settled tests

4 determining whether a local regulation is invalidated

why the Commerce Clause.

Ever since Gibbons v. Ogden, 9 Wheat. 1, the

states have not been deemed to have authority to

impede substantially the free flow of commerce from

state to state, or to regulate those phases of the

national commerce which, because of the need of na.

tional uniformity, demand that their regulation, if

any, be prescribed by a single authority.” 325 U.S.

at 767 (footnote omitted).

When a local law is challenged as invalid under the

Commerce Clause, it is the responsibility of the court to

weigh competing national and local interests to determine

whether the local law substantially (1) impedes the free

flow of commerce or (2) operates in an area where regu-

lation should be prescribed by a single authority. See,

e. g., Southern Pacific Co. v. Arizona, 325 U.S. 761, 768-69

(1945), and cases cited.* In making both these determi-

nations, the Court should not regard the local regulation

as an isolated phenomenon but should consider the effect

if similar regulations were enacted throughout the United

States. Consideration of the national effect is especially

important where a local regulation might impose incon-

sistent requirements upon interstate carriers so as to

interfere with the efficient use of the channels of con-

merce. See, e. ., Bibb v. Navajo Freight Lines, 359 US.

520, 526-27 (1959); Morgan v. Virginia, 328 US. 373

(1946) ; Southern Pacific Co. v. Arizona, 325 U.S. 761, 775

(1945).

sisi isin

If it appears that a local law is violative of the Com-

merce Clause, the fact that it was passed in the exercise

of the police power will not save it.

“The principle that, without controlling Congres-

gional action, a state may not regulate interstate

commerce 80 as substantially to affect its flow or

deprive it of needed ‘uniformity in its regulation

is not to be avoided by ‘simply invoking the con-

venient apologetics. of the police power. Southern

Pacific Co. v. Arizona, 325 U.S. 761, 779-80 (1945).

ne district court, applying the above standards, found

the Burbank curfew to run afoul of the Commerce Clause

(OL. 19-21, A. 405-06).° The trial judge’s conclusions

are clearly correct and are supported by uncontradicted

evidence, as the following will demonstrate.

A. The District Court Properly Found That a Single

Authority Is Required for Airspace Management

and Regulation of Aircraft Operations and Aircraft

Noise.

Whether a local law, in the words of one of the South-

ern Pacific tests, regulates one of “those phases of the

national commerce which, because of the need of national

uniformity, demand that their regulation, if any, be pre-

scribed by a single authority” is a determination that

requires evaluation of the nature of the phase of com-

merce involved and the practical effect of the challenged

regulation. Only in this way can a court appraise whether

the subject area is one where uniformity of regulation is

necessary to assure the efficient and free flow of national

commerce. Kelly v. Washington, 302 U.S. 1, 9 (1937).

After considering the evidence before him, the district

court ruled in its memorandum opinion as follows:

“There is no conflict in the evidence adduced in

this case and it should be concluded that air con.

merce, by reason of its speed and volume, requires

a single authority in control if it is to be conducted

at maximum safety and efficient use of the navigable

airspace.

“The evidence discloses that air traffic is unique

and should be controlled on the national level.”

(A. 368.) e ;

The court reiterated this view in Conclusion of Law 21:

“The volume of air commerce, the speed with which

it is conducted, the technical complexity of its sched-

uling and operation, and the limited availability of

such of its essential aspects as airports, aircraft, air

traffic routes, and aircraft maintenance facilities all

make national uniformity of regulations prescribed

by a single authority a necessity, so that this phase

of the national commerce may be conducted with

maximum safety and so as to achieve efficient use of

the navigable airspace.” (A. 406.)

The national character of air transportation which

demands regulation by a single authority is vividly

demonstrated by the centralized flow contro] system and

high density traffic airport rules established by the FAA

See FF. 48-54, A. 390-92. The trial court also considered

evidence of the complexity of national aircraft flight

operations (F. F. 41-47, A. 386-89) as well as testimony

regarding the intricate and complex problems of schedul-

a vo

ing and maintenance of air carrier aircraft (F.F. 75-76,

A. 398).

The need for centralized management of the navigable

is also shown by considering the confusing, even

chaotic, effect of permitting regulation by the conflicting

itical jurisdictions that surround and interact upon

many major airports in the, United States. The testimony

of the former head of the Civil Aeronautics Administra-

tion depicted a number of these potentially hazardous

situations (A. 292-93). Another instance of conflicting

local regulation which interrupted airport operations

was dealt with by. the Second Circuit in United States

v. City of New Haven, 447 F.2d 972 (2d Cir. 1971). And

in this case the evidence shows that a portion of the

Hollywood-Burbank Airport lies within the cities of

Los Angeles and Burbank and portions of its runways

are owned by the federal government (F. F. 6, A. 377).

Indeed, the need for centralized regulation is high-

lighted by the geographical area served by the Holly-

wood-Burbank Airport: the majority of passengers

desiring to depart from the Airport within curfew hours

are probably not Burbank residents. Such “extraterri-

torial effects” of state and local statutes have always

played an influential role in persuading this Court to

~ énvalidate local regulations. See Southern Pacific Co. v.

Arizona, 325 U.S. 761, 767-68 n.2 (1945); Edwards v.

California, 314 U.S. 160, 174 (1941).

Other decisions recognizing that regulation of air

transportation must come from a single source if the flow

of commerce is not to be impaired are American Airlines,

Inc. v. City of Audubon Park, 297 F. Supp. 207 (W.D.

Ky. 1968), af d, 407 F.2d 1306 (6th Cir.), cert. denied,

B96 U.S. 845 (1969); American Airlines, Inc. v. Town of

Hempstead, 272 F. Supp. 226 (E. D. N. V. 1967), afd

without reaching commerce clause issue, 398 F. 2d 369

(2d Cir. 1968), cert. denied, 393 U.S. 1017 (1969); and

All American Airways, Inc. v. Village of Cedarhurst,

106 F. Supp. 521 (E. D. N. T. 1952), af d, 201 F.2d 273 (2

Cir. 1953).

In sum, the Burbank curfew ordinance, particularly

when viewed in the light of its natural tendency to induee

a proliferation of similar restrictions, surely operates in

one of those areas which “demand that their regulation,

if any, be prescribed by a single authority.” Southern

Pacific Co. v. Arizona, 325 U.S. 761, 767 (1945). Local

attempts to restrict airports so integrally connected with

interstate commerce for one-third of the available hours

every day would hobble the nation’s airport and airway

system. Such a result would be especially undesirable

because the system, to borrow from the Congressional

declaration of policy in the Airport and Airway Develop-

ment Act of 1970, 49 U.S.C. § 1701, already “is inadequate

to meet the current and projected growth in aviation”

and requires “substantial expansion and improvement...

to meet the demands of interstate commerce

B. The District Court Properly Found the Burbank

Ordinance To Impede Substantially the Free Flow

of Interstate Commerce.

The district court also evaluated the Burbank curfew

under the other Southern Pacific test: whether the regu-

lation impedes substantially the free flow of interstate

commerce. The court concluded that: ;

“The nationwide imposition of ordinances such as

Burbank’s would seriously interrupt the carriage of

interstate passengers, mail, and goods and thereby

po, eon

substantially impede the free flow of commerce from

state to state, and, considered on such a national

basis, such ordinances could not stand.” (C.L. 20,

A. 405.)

The trial court was entirely correct in holding that

under the Commerce Clause, an ordinance such as Bur-

bank’s cannot be considered “solely in the accident of its

particular circumstances: but must be weighed and tested

as if imposed on a nation-wide basis” (C.L. 13, A. 404).

See, e. g., Hood d Sons v. DuMond, 336 U.S. 525, 538-39

(1949); Mississippi Railroad Comm'n v. Illinois Central

R.B., 203 U.S. 335 (1906) ; Minnesota v. Barber, 136 U.S.,

313, 321 (1890), and cases cited supra page 72. The same

approach was taken by the district court in American

Airlines, Inc. v. Town of Hempstead, 297 F. Supp. 226,

231 (E.D.N.Y. 1967), af d on other grounds, 398 F. 2d 369

(2d. Cir. 1968), cert. denied, 393 U.S. 1017 (1969), in con-

sidering the constitutionality of a local law regulating

the flight of aircraft.*

Findings of Fact 67 through 82 detail the “near cata-

strophic effect” that ordinances such as Burbank’s would

impose on interstate commerce (F.F. 70, A. 396). For

example, scheduling would be drastically upset, with the

departures of flights between widely separated cities

limited in some cases to less than one-third of the avail-

able hours of the day (F.F. 68, A. 396). Continental Air

Lines alone would have to cancel over 48 flights per day

(FF. 71, A. 397), and its operating costs would be in-

creased by approximately 25 percent (F.F. 72, A. 397 ).

Other carriers would be similarly affected (F.F. 73,

A. 397).

* In addition, testing the ordinance as if im

national basis was warranted by the uncontradi

A. 276, 284-85, that these ordinances, i

anc be go by virtually all cities surrounding airports. See

Each day, some 1,009 scheduled departures occur

throughout the country between 11 :00 p.m. and 7:00 am,

and all of these flights would have to be cancelled (F-F.

74, A. 397). Because over 48 percent of the nation’s air

mail is carried during curfew hours, billions of pieces of

mail annually would be delayed at least one day in deliv-

ery (F.F. 79, A. 399). The air cargo industry exists upon

its ability to operate during curfew hours, and the re-

quired cancellation of these all-cargo services would have

a drastic impact upon the nation’s business community

(F.F. 80-81, A. 399-400).

In sum, the findings show that the imposition of cur-

few ordinances on a nationwide basis would (1) drasti-

cally restrict the hours available for flight scheduling far

beyond the curfew period, (2) severely impair the

efficiency of the maintenance system, (3) require exten-

sive rescheduling at enormous inconvenience and ex-

pense, (4) deteriorate air transportation service to the

public, (5) increase the already serious congestion prob-

lem, (6) intensify the noise problem in the hours im-

mediately preceding the curfew, which is the period of

greatest annoyance to surrounding communities, and (7)

delay billions of pieces of mail and air freight annually

with resulting drastic effect upon the business commu-

nity. (F.F. 67-68, 70-82, A. 396-400.)

These massive disruptions in the national air transport

system clearly constitute an unreasonable burden on

interstate commerce and impede substantially its free

flow. The effects of curfew laws would be far more

destructive of the free flow of commerce than those which

have caused the Supreme Court to strike down earlier

local regulatory enactments. See, e. g., Southern Pacific

Co. v. Arizona, 325 U.S. 761 (1945) (regulating the length

of railroad trains passing through the state) ; Railroad

Company v. Husen, 95 U.S. 465 (1877) (prohibiting the

conveyance of specified types of cattle into the state be-

tween March and November of each year); Bibb v.

Navajo Freight Lines, Inc., 359 U.S. 520 (1959) (pre-

scribing specialized equipment on trucks passing through

the state).

\ - GONCLUSION

For the foregoing reasons, the judgment of the court

of appeals should be affirmed.

Respectfully submitted,

Warren CHRISTOPHER

RalrRHR W. Dav

Mrohakl. D. Zuntnmax

Attorneys for Appellees

Of Counsel:

O’Mzetveny & Myers

KmrLaxD & Packarp

December, 1972.

(1)

APPENDIX A

Noise Control Act of 1972

Public Law 92-574, 86 Stat. 1234

92nd Congress, H. R. 11021

October 27, 1972

AIRCRAFT NOISE STANDARDS

Sud. 7. (a) The Administrator, after consultation with

appropriate Federal, State, and local agencies and inter-

ested persons, shall conduct a study of the (1) adequacy

of Federal Aviation Administration flight and opera-

tional noise controls; (2) adequacy of noise emission

standards on new and existing aircraft, together with

recommendations on the retrofitting and phaseout of

existing aircraft; (3) implications of identifying and

achieving levels of cumulative noise exposure around

airports; and (4) additional measures available to air-

port operators and local governments to control aircraft

noise. He shall report on such study to the Committee on

Interstate and Foreign Commerce of the House of Repre-

sentatives and the Committees on Commerce and Public

Works of the Senate within nine months after the date of

the enactment-of this Act.

(b) Section 611 of the Federal Aviation Act of 1958

(49 U.S.C. 1431) is amended to read as follows:

“CONTROL AND ABATEMENT OF AIBORAFT

NOISE AND SONIC BOOM

“Szo. 611. (a) For purposes of this section:

“(1) The term ‘FAA’ means Administrator of the

He Federal Aviation Administration.

(2)

“(2) The term ‘EPA’ means the Administrator

of the Environmental Protection Agency.

“(b)(1) In order to afford present and future relief —

and protection to the public health and welfare from air.

craft noise and sonic boom, the FAA, after consultation

with the Secretary of Transportation and with EPA,

shall prescribe and amend standards for the measurement

of aircraft noise and sonic boom and shall prescribe and

amend such regulations as the FAA may find necessary

to provide for the control and abatement of aircraft noise

and sonic boom, including the application of such stand-

ards and regulations in the issuance, amendment, modifi-

cation, suspension, or revocation of any certificate author-

ized by this title. No exemption with respect to any

standard or regulation under this section may be granted

under any provision of this Act unless the FAA shall

have consulted with EPA before such exemption is

granted, except that if the FAA determines that safety

in air commerce or air transportation requires that such

an exemption be granted before EPA can be consulted,

the FAA shall consult with EPA as soon as practicable

after the exemption is granted.

“(2) The FAA shall not issue an original type certifi.

cate under section 603(a) of this Act for any aircraft for

which substantial noise abatement can be achieved by

prescribing standards and regulations in accordance with

this section, unless he shall have prescribed standards

and regulations in accordance with this section which

apply to such aircraft and which protect the public from

aircraft noise and sonic boom, consistent with the con-

siderations listed in subsection (d).

“(¢)(1) Not earlier than the date of submission of the

report required by section 7(a) of the Noise Control Act

of 1972, EPA shall submit to the FAA proposed regula-

(3)

tions to provide such control and abatement of aircraft

noise and sonic boom (including control and abatement

through the exercise of any of the FAA’s regulatory

authority over air commerce or transportation or over

aircraft or airport operations) as EPA determines is

necessary to protect the public health and welfare. The

FAA shall consider such proposed regulations submitted

by EPA under this paragraph and shall, within thirty

days of the date of its submission to the FAA, publish

the proposed regulations in a notice of proposed rule-

making. Within sixty days after such publication, the

FAA shall commence a hearing at which interested per-

sons shall be afforded an opportunity for oral (as well

as written) presentations of data, views, and arguments.

Within a reasonable time after the conclusion of such

hearing and after consultation with 7 the FAA

shall —

“(A) in accordance with subsection (b), prescribe

regulations (i) substantially as they were submitted

by EPA, or (ii) which are a modification of the pro-

posed regulations submitted by EPA, or

“(B) publish in the Federal Register a notice that

it is not prescribing any regulation in response to

IP's submission of proposed regulations, together

with a detailed explanation providing reasons for

the decision not to prescribe such regulations.

%) If EPA has reason to believe that the FAA’s

action with respect to a regulation proposed by EPA

under paragraph (1) (A) ((ii) or (1)(B) of this subsec-

tion does not protect the public health and welfare from

aircraft noise or sonic boom, consistent with the con-

derations listed in subsection (d) of this section, EPA

il consult with the FAA and may request the FAA to

, and report to EPA on, the advisability of pre-

(4)

scribing the regulation originally proposed by EPA. Any

such request shall be published in the Federal Register

and shall include a detailed statement of the information

on which it is based. The FAA shall complete the review

requested and shall report to EPA within such time as

EPA specifies in the request, but such time specified may

not be less than ninety days from the date the request

was made. The FAA’s report shall be accompanied by a

detailed statement of the FAA’s findings and the reasons

for the FAA’s conclusions; shall identify any statement

filed pursuant to section 102(2)(C) of the National

Environmental Policy Act of 1969 with respect to such

action of the FAA under paragraph (1) of this subsec-

tion; and shall specify whether (and where) such state-

ments are available for public inspection. The FAA;

report shall be published in the Federal Register, except

in a case in which EPA's request proposed specific action

to be taken by the FAA, and the FAA’s report indicates

such action will be taken.

“(3) If, in the case of a matter described in para-

graph (2) of this subsection with respect to which no

statement is required to be filed under such section 102

(2)(C), the report of the FAA indicates that the pro-

posed regulation originally submitted by EPA should not

be made, then EPA may request the FAA to file a supple

mental report, which shall be published in the Federal

such time specified shall not be less than ninety days

from the date the request was made), and which shall

contain a comparison of (A) the environmental effects

(including those which cannot be avoided) of the action

actually taken by the FAA in response to EP.A’s proposed

regulations, and (B) EPA’s proposed regulations.

(5)

„d) In prescribing and amending standards and reg-

ulations under this section, the FAA shall —

“(1) consider relevant available data relating to

aircraft noise and sonic boom, including the results

of research, development, testing, and evaluation

activities conducted pursuant to this Act and the De-

partment of Transportation Act;

“(2) consult with such Federal, State, and inter-

state agencies as he deems appropriate;

“(3) consider whether any proposed aidan’ or

regulation is consistent with the highest degree of

safety in air commerce or air transportation in the

public interest;

“(4) consider whether any proposed standard or

regulation is economically reasonable, technological-

ly practicable, and appropriate for the particular

type of aircraft, aircraft engine, appliance, or cer-

tificate to which it will apply; and

“(5) consider the extent to which such standard or

regulation will contribute to carrying out the pur-

poses of this section.

“(e) In any action to amend, modify, suspend, or re-

yoke a certificate in which violation of aircraft noise or

sonic boom standards or regulations is at issue, the cer-

tificate holder shall have the same notice and appeal

rights as are contained in section 609, and in any appeal

to the National Transportation Safety Board, the Board

may amend, modify, or reverse the order of the FAA if

it finds that control or abatement of aircraft noise or

sonic boom and the public health and welfare do not

the affirmation of such order, or that such order

is not consistent with safety in air commerce or air

5 tion.“

(6)

(o) Al—

(1) standards, rules, and regulations presefi

under section 611 of the Federal Aviation A

1958, and

(2) exemptions, granted under any provision

the Federal Aviation Act of 1958, with resped

such standards, rules, and regulations, q

—which are in effect on the date of the enactment of

Act, shall continue in effect according to their terms

modified, terminated, superseded, set aside, or repes

by the Administrator of the Federal Aviation Admin

tration in the exercise of any authority vested in him

a court of competent jurisdiction, or by operation of I

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.