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

INDEX

PAGE

iS Below, Questions Presented and Constitu-

al and Statutory Provisions Involved ...... 1

inary Statement 2

p and Interest of Air Line Pilots Association,

national. e eee 2

* y of Previous Decisions ................ 3

we at Battrr . 4

Belo . 5

5 The Burbank Ordinance is invalid upon

— ou nds of conflict, preemption and burden

ee eee 6

4 Local Regulation Upon the National

JJV i

** is not applicable 11

II- Questions as to the adequacy of noise

lation are not appropriate for the Court's

. ̃ essen ouxeeaes 12

JJ%7ͤĩ˙—U:k «8 13

TABLE OF AUTHORITIES CITED

Cases

sport Association of America, et al. v. The

y of Inglewood, etc., et al. F. Supp.

ptral District of California, >) ee 3, 4, 8

ny Airlines, Inc. v. Village of Cedarhurst,

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

i ee 3, 4, 8

ii

American Airlines, Inc. v. Town of Hempstead,

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

2d 369 (2d Cir. 1968), cert. den., 398 U.S. 1017

, ,,... ve cde es 8, 4, 7,8

Campbell v. Hussey, 368 U.S. 297 (1961) ........ 5

Huron Portland Cement Company v. Detroit, 362

U.S. 440, 80 Sup. Ct. 813 (1960) ...... —L— 11,12

Statutes

Federal Aviation Act, § 611, 49 U.S.C. § 1431. 1

Noise Control Act of 1972, Public Law No. 92-574. 11,12

IN THE

ban. Cnurt of the United States

October Term, 1972

No. 71-1637

4

*

Tae CITY OF BURBANK, a municipal corporation; Dr.

Janvey GILBERT, Mayor; ROBERT R. MCKENZIE, Vice-

Mayor; Councilman GEORGE W. HAVEN; Councilman Ros-

gt A. SWANSON; Councilman D. VERNER GIBSON; JOSEPH

M BAKER, City Manager; SAMUEL GORLICK, City Attorney

for the City of Burbank and REX R. ANDREWS, Chief of

Police of the City of Burbank,

Appellants,

—v8.—

IOCKHEED AIR TERMINAL, INC., a corporation, PACIFIC

SOUTHWEST AIR LINES, a corporation, and AIR TRANSPORT

ASSOCIATION OF AMERICA,

Appellees.

Ah.

a af

BRIEF OF AIR LINE PILOTS ASSOCIATION,

INTERNATIONAL, AS AMICUS CURIAE

Opinions Below, Questions Presented

and Constitutional and Statutory

Provisions Involved

In the interest of brevity the statements contained in the

rief of the Appellees with respect to the Opinions Below,

Questions Presented and Constitutional and Statutory Pro-

tions Involved are hereby adopted.

2

Preliminary Statement

Air Line Pilots Association, International of 1625 Mass.

chusetts Avenue, N. W., Washington, D. C., submits this

brief as amicus curiae pursuant to the written consent of

all parties. A copy of such written consent dated Decem-

ber 6, 1972 is submitted herewith. This brief is submitted

in support of the position of the Appellees.

Status and Interest of

Air Line Pilots Association, International

Air Line Pilots Association, International, hereinafter

ALPA, is an international labor organization affiliated

with the American Federation of Labor-CIO.

ALPA is an unincorporated association organized for the

purposes and objectives of a labor organization. It is the

collective bargaining representative under the Railway

Labor Act of approximately 28,000 pilots and 15,000 flight

attendants employed by the majority of the scheduled air

carriers of the United States.

ALPA has actively represented such employees not only

for purposes of collective bargaining but also for the pur-

pose of developing and maintaining standards of safety in

matters pertaining to air transportation since 1933.

ALPA through its Safety Organization has maintained

a deep involvement in matters of safety. It has participated

actively in the development of effective safety programs

including the investigation of airline accidents” and the

creation of a nationwide system. A substantial portion of

ALPA’s budget has been devoted to such purposes.

_ .

3

The nature of ALPA’s standing and interest is shown

by the leading cases on the question of federal supremacy

and preemption as to air traffic regulation, and particularly

8 to air traffic regulation involving control of aircraft

noise. ALPA was a plaintiff in Allegheny Airlines, Inc. v.

Village of Cedarhurst, 132 F. Supp. 871 (E.D.N.Y. 1955),

258 F. 2d 812 (2d Cir. 1956); and in American Airlines,

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

1967), aff’d. 398 F. 2d 369 (2d Cir. 1968), cert. den., 393

US. 1017 (1969); and in Air Transport Association of

America, et. al. v. The City of Inglewood, etc., et al.,

7. Supp. (Central District of California, 1972).

Summary of Previous Decisions

In Cedarhurst a village adjacent to John F. Kennedy

Airport (then Idlewild) asserted the power to control the

altitude of aircraft flying over its boundaries when landing

ator taking off from the airport. The local ordinance,

nich was aimed at noise control, prohibited flights at an

altitude below 1,000 feet.

In Hempstead the township adjacent to the same air-

port attempted to achieve noise control for aircraft cross-

ing its boundaries without specifically mentioning altitudes

bat by reference to noise levels in terms of decibels.

In Inglewood, a village adjacent to Los Angeles Inter-

-titional Airport, attempted to regulate air traffic crossing

daries by establishing noise standards in terms of

é but excluding from the scope of such regulation

aircraft operated pursuant to federal air regulations or

merating under emergency orders.

22

*

.

In each of the above cases the municipality sought to cir.

cumvent the Constitutional protection of federal authority

by attempting to segregate noise control from traffic con.

trol. In each case the court had no difficulty in perceiving

the actual interference with the federal authority over air

traffic control despite the attempted artificial segregation

of noise from traffic.

In Cedarhurst it was asserted that federal authority hai

not been exercised below 1,000 feet. In Hempstead it was

asserted that noise control was not an area occupied pur-

suant to federal authority. In Inglewood it was asserted

that by reason of the exemption of aircraft operating pur.

suant to federal air regulations or operating under emer.

gency orders there was neither conflict nor invasion of a

preempted area.

The Case at Bar

In the case at bar it has been asserted by the City of

Burbank that none of the foregoing authorities is con-

trolling because the local ordinance in question merely pro-

hibits pure jet aircraft from taking off from the Holly-

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

7:00 A.M. the next day. It is evidently the theory of the

Appellants that an absolute prohibition of all flights dur-

ing stated hours does not constitute regulation of air traffic

in the sense in which air traffic control is exercised and

preempted by federal authority.

8 Decisions Below

‘The District Court herein concluded:

Our scientific and mechanical expertise has not

pet solved the problem of noise resulting from the

generation of power by jet engines. However, if the

time during which the navigable air space may be

used is to be curtailed, the Court concludes that the

action must come from Congress, or its authorized

agency, if the safe and efficient use of the air space

is to be maintained and interstate commerce pro-

tected from unreasonable burden and ‘interference.”

(Appendix, p. 378)

Upon appeal to the Cireuit Court of Appeals for the

Ninth Circuit, the Court of Appeals concluded:

“In this case, we have found the conclusion of

federal preemption ‘unavoidable.’ Furthermore, the

Federal Aviation Act also contains language of ex-

clusivity. 49 U.S.C. § 1508 declares that the United

States possesses and exercises ‘complete and exclu-

ive national sovereignty in the airspace of the

United States...’ That is the same type of expres-

sion which the Supreme Court found in the Federal

Tobacco Inspection Act to evidence Congressional

intent to establish a wholly federal system which

States were powerless even to supplement. Campbell

V. Hussey, 368 U.S. 297 (1961).” (Appendix, p.

424)

Beterring to the runway preference order dealing with

the problem of noise in the vicinity of the airport, which

the FAA 2 of the airport traffie control tower at

Hollywood-Burbank Airport had issued, the Court of Ap-

1 declared:

6

“The order stated that ‘[p]rocedures established

for the Hollywood-Burbank airport are designed tp

reduce community exposure to noise to the lowest

practicable minimum...’ (emphasis added). This

assertion represents a considered determination by

an authorized representative of the FAA that meas.

ures of the magnitude of that taken by the City of

Burbank are beneath ‘the lowest practicable mini-

mum.’ The municipal curfew ordinance, therefore,

interferes with the balance set by the FAA among

the interests with which it is empowered to deal, and

frustrates the full accomplishment of the goals of

Congress.’ Because of this conflict, as well as the

general preemption of the area of aircraft noise

regulation from the exercise of a State or local gov-

ernment’s police power, the Burbank ordinance is

unconstitutional, illegal and void.” (Appendix, pp.

426-427)

a POINT I

The Burbank Ordinance is invalid upon the grounds

of conflict, preemption and burden on commerce.

It is the position of ALPA that each of the cases outlined

above, including the case at bar, involves the same essen-

tial question, namely, whether the area of air traffic contro

has, pursuant to the Constitution and Act of Congress,

been occupied by the federal government or whether it has

been reserved for local regulation. ALPA respectfully sub-

mits that the decisions above cited holding that the at-

tempted local regulation in each case presented either 3

direct conflict with federal regulation of air traffic, or the

invasion of a preempted area, or a burden on interstate

commerce, were correct, and that there is no sound basis

7

for the Appellants’ attempted distinction herein based upon

the superficial difference that the local ordinance seeks to

control noise by the absolute elimination of all flights dur-

ing 8 out of 24 hours.

Impact of Local Regulation

Upon the National Scheme

In Hempstead the District Court made the following

statement which was quoted with approval by the District

Court in the case at bar:

“Such an ordinance as Hempstead’s cannot be

considered in the accident of its particular circum-

stances. * * In the perspective of power, the ordi-

nance must be tested as if it were one of a set of

ordinances each enacted by a bordering town, and

all, taken together, enveloping the airport. Diver-

sion of the airport traffic over another Town would

then be impossible and each ordinance would be re-

vealed in its inner nature as a direct regulation of

aircraft flight. * * * The question remains, may the

municipalities that surround an airport adopt such

ordinances as Hempstead’s which deny to aircraft

those parts of the navigable air space that cannot be

used without causing noise on the ground in excess

of specified limiting noise spectra.

4 * * legislation, whatever its purpose, that

denies access to navigable air space by local rule

cannot but be regarded as a plain and forbidden

exertion of the power to regulate commerce as such.

eee .

“But even if the commerce clause were not thought

without more to preclude local action of the kind

here involved, the actual exercise by the Congress of

the power to regulate in this field is so pervasive as

to preclude valid enactment of the Hempstead Ordi-

5 nance. It would be difficult to visualize a more com-

8

‘prehensive scheme of combined regulation, gub

sidization and operational partieipation than that

which the Congress has provided in the field of api.

ation.”

. * +. * * :

“Local initiative in noise control of aviation is

inherently an effort to regulate a consequence while

disclaiming regulation of the cause. It cannot co.

exist with a comprehensive system of federal regula-

tion of aircraft manufacture (through certificates

of airworthiness) and federal regulation of air navi.

gation and air traffic.” (272 F. Supp. 226, at pp.

231-232, 235; Appendix, pp. 364-865) *

The District Court’s analysis goes to the heart of the mat-

ter. Interstate air traffic control is an indivisible structure.

It cannot realistically be broken into separate segments

measured by the geographical boundaries of villages, town-

ships, cities and the like. Air traffic has added new dimen-

sions to transportation. It is not contained within bounds

marked on the surface of the earth as are railways, water-

ways and highways; it operates at a speed approaching

that of sound. Air traffic must be described as a form of

interstate commerce essentially different from pre-existing

forms of transportation. Its path through space is based

upon the necessities of aerodynamics rather than the con-

ventions of municipal jurisdiction.

A local ordinance affecting air traffic cannot be con-

sidered in isolation. The national system of air traffic is a

sensitive organism, all parts of which are closely inter-

related. What may appear to be a trivial matter at à small

airport may interrupt the safe flow of interstate air traffic

similar cases demonstrating ingenuity and persistence of

local authorities in their attempts to regtlate

9

over thousands of miles. Exhibit 33 (Appendix, pp. 115,

et seg.) is an order of the FAA entitled “Central Flow Con-

trol Order” which provides for centralized flow control

from Washington, D. C. in order to coordinate flow control

throughout the national air traffic system. Other federal

air traffic control centers, regional and local, also estab-

lished by FAA order, must report their intentions to the

Washington, D. C. center in advance, and await approval,

in order to achieve system-wide coordination. (Appendix,

pp. 115, 890-391).

The admitted facts in this case show the all pervasive

federal control of air transportation, including the licensing

of pilots, construction and maintenance of airport facilities,

airworthiness certification of aircraft, and nationwide con-

trol of air traffic (Appendix, p. 384). The District Court

correctly found :

“Aircraft have such a range and such speed and

they involve such technical complexity that they

have to be managed on a centralized basis. The

transport aviation industry is unique and must be

regulated on a national basis, both technically and

economically, by the Federal Government. The ap-

proach to the solution of air transportation prob-

lems at the local level does not work. Regulation on

a national basis is required because air transporta-

tion is a national operation.” (Finding No. 59, Ap-

pendix, p. 394.)

In the light of these facts it is somewhat ludicrous to

contemplate the operation of the local ordinance here in

question which would relegate to the “City’s Police Depart-

ment” and to the “Watch Commander” of the local police

le question whether there is a flight “of an emergency

10

The locking up of the Hollywood-Burbank Airport be.

tween the hours of 11:00 P.M. and 7:00 A.M. cannot be

disregarded as a harmless local measure. It has significant

reverberations throughout the national system of air trafik

control. The measurement of time for national air traffic

control regulation is not limited to the clock located at the

Burbank City Hall. When the clock is 11:00 P.M. at Bur.

bank it is 8:00 P.M. at Hawaii. When the clock is 5:00

A.M. at Burbank it is 8:00 A.M. at New York.

The District Court made the following findings of fact

bearing upon the effects of the Burbank curfew:

“. . . if a curfew ordinance such as that before this

Court were held valid, similar ordinances would be

adopted by virtually all cities surrounding airports”

(Finding No. 69, Appendix, p. 896.)

“The imposition of curfew ordinances on a 13.

tional basis would have a near catastrophic effect on

the national air transportation system.. (Find-

ing No. 70, Appendix, p. 396.)

“The imposition of curfew ordinances on a nation-

wide basis would result in a bunching of flights in

those hours immediately preceding the curfew. This

bunching of flights during these hours would have

the twofold effect of increasing an already serious

congestion problem and actually increasing, rather

than relieving, the noise problem by increasing

flights in the period of greatest annoyance to sur-

rounding communities.” (Finding No. 78, Appen-

dix, p. 399.)

The necessity for an exclusively federal system of air

traffic control is apparent in more than an academic sense.

There could hardly be a more effective demonstration of

the merger of constitutionality and practicality which was

the design of the writers of our Constitution.

POINT II

Huron is not applicable

The case of Huron Portland Cement Company v. Detroit,

$62 U.S. 440, 80 Sup. Ct. 813 (1960) is not applicable. It

was properly distinguished from the case at bar by the

Court of Appeals on the ground that in Huron the purpose

of the federal inspection laws was limited to protection

against the perils of marine navigation, a purpose which

was unaffected by local control of air pollution. In the case

at bar the crucial fact is that Congress has granted the FAA

responsibility for balancing “considerations of safety, effi-

ciency, technological progress, common defense and en-

vironmental protection” in terms allowing of no doubt as

to the exclusivity of federal jurisdiction. (Circuit Court

opinion (Appendix p. 419); 49 U.S.C. § 1431 (1968) ).

Even if the above distinction were not made it would

still have to be concluded that Huron is not applicable. That

case was decided by this Court a scant two years after

enactment of the Federal Aviation Act of 1958. In the

decade since Huron air transportation has vastly increased

in scope and complexity. This Court had no occasion then

for concern regarding any claims of applicability of its

ruling to the area of national air transportation. Huron

involved marine transportation on a narrow inland water-

way. No menace to a sensitive nationwide system of air

transportation could then be perceived in a local smoke-

control ordinance. Since Huron, passage by Congress of

the 1968 Noise Abatement Amendment (Federal Aviation

Act §611; 49 U.S.C. § 1431) and of the Noise Control

Act of 1972 (Public Law No. 92-574) made clear the Con-

j intention to preempt to federal authority the

of aircraft noise. The application of Huron to-

the complexities of jet aircraft traveling at near

12

sonic speeds, under a comprehensive system of federal con.

trol, would be less than realistic. Huron is obviously dis.

tinguishable from the case at bar, not only on the ground

stated by the Court of Appeals but also on the ground of

historical development.

POINT III

Questions as to the adequacy of noise regulation are

not appropriate for the Court’s consideration.

Much has been said about the impact of aircraft noise

upon the comfort and health of those who live near air-

ports. It is a subject which generates emotion. Now that

ecology has become a by-word, sentiment is stronger than

ever in favor of a peaceful and secure environment. ALPA

is no less sensitive to these community concerns than other

groups. Our sympathy for such aims must not, however,

distract us from the pivotal question, which is whether the

attainment of such aims must be entrusted to the federal

government or to the numerous municipalities lying ad-

jacent to the interstate airports. It is argued that the FAA

has not adequately protected local communities from air-

craft noise.“ That argument is not properly addressed to

the courts. It is a contention which should be addressed to

the FAA and to Congress. The question here is not how

well has the FAA regulated but who is authorized to regu-

late under the Constitution and the controlling Acts of

Congress. As to that essential question it is e

submitted that the answer is clear.

* The fact is, however, that the FAA has been active in this area.

by the FAA 55, 56 and 57 show various ures established

the FAA to alleviate noise. See also oise Control Act of

2 (Public Law No. 92-574).

18

CONCLUSION

The judgment of the Court of Appeals should be

affirmed.

Respectfully submitted,

SAMUEL J. COHEN

Attorney’ for

Air Line Pilots Association,

International, Amicus Curiae

Of Counsel:

COHEN, WEISS AND SIMON