# Amicus Curiae Brief — Burbank v. Lockheed Air Terminal, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0140%3A14 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1973 - **Citation:** 411 U.S. 624 ## Text SUBJECT INDEX | Page TABLE OF AUTHORITIES DTIC UM WCW bce tec er cece seers esc eecees i EEE vi ES a ix Federal Aviation Regulations .................. x Civil Aeronautics Board Regulations. ............. xii Ss eek icd sche Sewoccccees xii Swe eveehnoseacesees xii PRELIMINARY-STATEMENT ............---+55- ] RIT SEED AAMMICUS 0.0 cee eee 4 SUMMARY OF ARGUMENT . eeeeemnom Argument ......... 20sec cccees 11 I. Burden on Interstate Commerce Argument....... 13 ARGUMENT I. Congress Has Preempted the Field of All Navi- gable Airspace, Including Regulation of Noise In TN , BRE EEPI FORE CER ERT Ee 15 A. Tests for Preemption Drawn from the Case NG Gia Rar tcc ss ebieeb wed ess sees 16 B. Discussion of Tests for Preemption .......... 20 (1) Congress has clearly expressed the inten- tion to occupy the field of regulation of a arr 20 Vi Peo er ie Act... ew 24 b. Legislative History of the Act......... 28 c. Court Action Concerning Federal Pre- “ee eevee eeee eee (3) Discussion of implied preemption of regu- lation of navigable airspace ............ (ii) a. Congress intended to occupy the field of ‘ regulation of aircraft noise........... 4 1, Discussion of the 1968 Noise Act .... 4 2. Consideration of the 1972 Act ...... 52 (a) The Preemption Section of the PPE UE ci a obo sin Wi makaie vo & 53 (b) Other Aspects of the Legislative History of the 1972 Act ....... 54 b. Pervasiveness of Federal regulatory CINE 5 65h eka WANs CARO ERR 56 1. FAA Has Enacted Regulations in the Area of Noise Control ........... 58 2. FAA Has Enacted a Comprehensive Set of Safety Rules That Pervade the MO iar ha usar h tac eee ns 59 3. The CAB Has Enacted Extensive Rules Regulating Commercial Air RUE sels ak bs Waban Svea Ss 62 c. The Subject of Aircraft Noise Is Heavily Involved With Aircraft Safety, And Therefore Demands An Exclusivity of Federal Regulation in Order to Achieve Uniformity Vital to the National Interest . 62 d. The Burbank Ordinance Stands as an Obstacle to the Accomplishment and Execution of the Full Purposes and Objectives of Congress ............. 64 II. The Ordinance of the City of Burbank and Similar Curfews Curtailing Operations of Airports Consti- tute a Regulation of Interstate Commerce That Is Neither Indirect Nor of Incidental Burden Thereon .~. 65 a ; (iii) ) A. The Air Transport Industry ...........-+-- el @ BDusinew Aviation ..................5. C. Pacific-Southwest Airlines Is Operating In Inter- Ee ea ee ee D. Operations at the Hollywood-Burbank Airport. . . > B. Effect of Burbank Curfew ........ bah wide s F, Effect of Implementation of Similar Curfews at : Other Airports, Nationwide .......... wher G. The District Court’s Findings ........ 4EVER HH. The Case Law Tests ......... bea cas é GONCLUSION ..............-5., end RE Exhibit 1, Affidavit of Lawrence P. Bedore, Manager, ~ Aiport Services, NBAA ..... 2-6 essere eeeee : - Bxhibit 2, Letter of Consent to NBAA to Participate as Amicus, Appellants ...... 6.6.6... eee eee renee - Exhibit 3, Letter of Consent to NBAA to Participate as (iv) TABLE OF AUTHORITIES ALPA v. Quesada, 276 F.2d 892 (2 Cir. 1960) Allegheny Airlines, Inc. v. Village of Cedarhurst, 238 F.2d 812 (2 Cir. 1956) Allen-Bradley Local v. Wisconsin Employment Board, 315 U.S. 740, 62 S.Ct. 820 (1942) American Airlines, Inc. v. City of Audubon Park, 297 F. Supp. 207 (W.D. Ky. 1968), aff'd per curiam, 407 F.2d 306 (6 Cir.), cert. denied, 396 U.S. 845 Nineties Aittaes, ti: v. Town of Heinpibied: 398 F.2d 369 (2 Cir. 1968), cert. denied, 393 US. - 1017.(1969) AOPA v. Port Authority of N.Y., 305 F. Supp. 93 Atlantic Coast Line R. Co. v. Georgia, 234 U.S. 280, 34 S.Ct. 829 (1914) Baldwin v. G.A.F. Seelig, Inc., 249 U.S. 511, 55 S.Ct. 497 (1935) Barrett v. N.Y., 232 U.S. 14, 34 S.Ct. 203 (1914) Bethlehem Steel Co. v. N.Y. State Labor Relations Board, 330 U.S. 767, 67 S.Ct. 1026 (1947) Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 79 S.Ct. 962 (1959) ' Braniff Airways v. Nebraska State Board, 374 U.S. $90, 74 S.Ct. 757 (1954) California v. Zook, 336 U.S. 725, 69 S.Ct. 841 ge eS 16, 19 327 USS. 92, 66 S.Ct. 438 (1946) ........ 18 Hays Freight Lines, Inc., 348 U.S. 61, 75 I 6 6 on oo es ores ce nes 18, 19, 39 &W. C. R. Co. v. Varnville Co., 237 US. ME CIIS) wo os we sees 17, 40, 59 & QR. Co. v. Illinois; 200 U.S. 561, 26 (1905) OT eS pea. 77 Southern Air Lines, Inc. v. Waterman S.S. 333 U.S. 103, 68 S.Ct. 431 (1948) ........... 56 Butter Co. v. Patterson, 315 U.S. 148, 62 SSS noe neni 18, 19, 67 of Public Works, 60 F.2d 638 (D.C © A RESBERS TIS Gait et acs Sine ae 78 » Inc. v. Janas, 202 F.2d 914 (2 Cir. (SSR FS RRS a Rada a a er 36 ti-Discrimination Commission v. Con- Airlines, Inc., 372 U.S. 714, 83 S.Ct. 1022 | CU SSSSS SS ASS Soccer 18, 19 bard of Wardens, 53 U.S. 298 (1851) ......... 20 iv. Nevada, 6 Wall. 35, 18 L.Ed. 745 (1868) ...... 23 n Kos > or A of Mass., Inc. v. eh 176 F. Supp. 466 (D.C. Mass. 1959) ........ 78 California 314 U.S. 160, 62 S.Ct. 164 a ie baa bg ok 0.8 0k b> 0 pW bia 0-8 66 v. Purdy, 185 U.S. 148, 22 S.Ct. 605 areas oe a Sd Sc a ech es. Kha ke 77 e & Avocado Growers, Inc. v. Paul, 373 S.Ct. 1210 (1963) ...... 16, 18, 19, 20, 40, 73 22 U.S. (9 Wheat.) 1 (1824) ..... 18, 20, 73 (vi) Gonzales v. Porto Rico, $1 F.2d 61 (1 Cir. 1931) i Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. MOREE SESE SS a ae 463 men ee 9 ek oe ca BREE PERE CU POS PERI ae | Head v. Board of Examiners, 374 U.S. 424, 83 S.Ct. fe vibes ch dite gn, SERS PE 17, 19,2 Hennington v. Georgia, 163 U.S. 299, 16 S.Ct. 1086 ng eS OUND og De ead eee ee 75, 76, 77, 78,9 Hill v. Florida, 325 U.S. 538, 65 S.Ct. 1373 (1945) ....... 1 Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399 UO ie ee ee ee ee Oe PE oes passin Wn Se Huron Portland Cement Co. v. Detroit, 562 US. 440, Pm mmn CIN ee poxn In re Vetetan’s Air Express Co., 76 F. Supp. 684(D. ._ We AE rts ste ee oe RS 17,4 TUAW v. O’Brien, 339 U.S. 454, 70 S.Ct. 781 (1950) ...... Kelly v. Washington, 302 U.S. 1, 58 S.Ct. 87 (1937) . 18,20,0 Kessler v. Dept. of Public Safety, 369 U.S. 153, 82 WT Odi Bis oo a om oc ec cae 5) Lakeshore & M.S. R. Co. v. Ohio, 173 U.S. 285, 19 WIPE res fee. ein coc ecuate 14 Local 174 v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. ae RD Ea Sek a aE SS NEO 20,2 Louisiana v. Texas, 176 U.S. 1, 20 S.Ct. 291900)... vate 1 Louisville and Nashville R. Co. v. Kentucky, 183 US. POPE eR CIIUE) oo. aie eck pnis onc age ere 14 Mack v. Eastern Airlines, Inc., 87 F. Supp. 113 (D.C. pe hectic? See FEE CLOT res % : iW, Atlantic Coastline R. Co., 272 U.S. 605, 47 Ct, pa (1926) es Ap Wi aioe teas os 8 17, 19, 40, 57 York N.H. R. Co. v. New York, 165 U.S. 628, esr e cat bs sy foes so 77 hen. States Power Co. v. Minnesota, 447 F.2d Ee re re 16, 19, 57, 72 Inc. v. Lakewood, ___N.J. Super.__, Aaa. (1972), 12 Avi. L. Rep. 17,623 ........ 72 v. Nelson, 350 U.S. 497, 76 S.Ct. 477 gaa A a hk baa cb Roe wk 4:9 B08 Se 17,19 nia R. Co. v. PSC, 250 U.S. 566, 40 S.Ct ae ee 17,19, 40 . Campbell, 402 U.S. 637, 91 S.Ct. 1704 EG ae Ceo SA oid hs uw 9 0b hk v0 17, 18, 38, 39 Minnesota, 177 US. 164, 20 S.Ct. 666 (1900) ...... 77 Authority of New York v. Eastern Airlines, Inc., F. Supp. 745 (D.C. E.D. N.Y. 1966) ............ 35 (viii) Prigg v. Somalis 26, Be 599, 10. L.Ed. 1060 GUN os ating ee nes een Fowhics oi. 17,40 Rice v. Board of Trade, 331 US. 247, 67 S.Ct. 1160 CIDE) orci ki wks bi ee MS Rice v. ficila Po Bowie Carp. 331 US. 218, 67 GEE AIAG OO 5 oo ives oo 6s 6 ke 15, 16, 18, 19,40 Reid v. Colorado, 187 U.S. 148, 23 S.Ct. 92 (1902) ....... n Reitz v. Mealey, 314 U.S. 33, 62 S.Ct. 24(1941) ...... a Robertson v. Califomia, 328 U.S. 440, 66 S.Ct. 1160 (TM re AR se 2 Rosdail v. Western Aviation, Inc., 297 F. Ses: 681 ie. TOES oe 5K ities ec cd % Rosenhan v. U.S., 131 F.2d 932 (10 (1900) 2. 17,34 v. Shepard, 230 U.S. 352, 33 S.Ct. 729 CR eres ES % Savage v. Jones, 225 U.S. $01, 32 S.Ct. 715 (1912) ..... 4,71 Seaboard Air Line R. Co. v. Blackwell, 244 U.S. 310, SP SRE OCI) eee as PO ees 73,79 South Carolina State Highway Dept. v. Barnwell Bros., 303 U.S. 177, 58 S.Ct. 510 (1938) .......... 20,41 Southern Pac. Co. v. Arizona, 325 U.S. 761, 65 S.Ct. SISTINE Se 20, 22, 63, 73, 76, 79 Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S.Ct. pI er get 8 AS 8 Southern R. Co. v. Railroad Sioeahaslaes 236 US. 439,35 $.Ct. 304 (1915) Cees ean ge tee eae oak 17 Sperry v. Florida, 373 U.S. 379, 83 S.Ct. 1323 CORN i ete yc eS tes ee 18 Standard Stock Food Co. v. Wright, 225 U.S. 540, 32. : SG Gh) ee ee eS ste 2 nN Texas & P. R. Co. v. Abilene, 204 US. 426, 27 S.Ct. NA Ph 6 5G kc ok oo wins oo 20 ey ee Town of Morristown, 108 per. 461, 261 A.2d 692 (1969) ............ 21, 72 from Harrison v. McGinley, 179. F. Supp. EN Foe a 78 TIE IE ore ene 17, 18, 34 bark v. Owens-Illinois Glass Co., 311 U-S. OED hoses ance, ALS 18 Superior Court of Arizona,__ P.2d ___ RS ie coe eee 21, 72 Pharmaceutical Co. v. Cameron, 76 F.2d 290 EEN Ee et ed 78 Georgia, Inc. v. Marietta, 416 F.2d 251 (5 ‘ lates Constitution Duties ...........:..0.,P5°. 65 Materials NE oo. 5S ck nk oad passim EE LG a Ri eae eee 27, 52 Io 27, 52 5 as is ko vrai cae is 25 ie Se oka sc aes 25 I srs i oo i eo os cs ek 26, 27, 46 ie sok bois Sw, os Ck has 46. a ae. 2. O29 =e ¢ 6-6 06's 6 66.0 's 0 0 @ 6 6 6:66 6 ee Sew eee eee ee ew ee eee eee eee ete eeeg” eee eeeeeeevreeevreeeeeeeeeeeenee tenes WUE TINGD. E528 ee ee 08 Gia ain c oon vss oka ao I 88 Oe a. a Ne oe eh Ss se sioss. 6 oc. eee 4 Me ce make a 5s wwikn vanes 4% A ns ys’ bdane sx eeae 43 iw tne a > sed 43 ss yc ht cake n I oe a i Ai 12, 48, 51, 52, 54,64 49 USC 1432, as added by P.L. 91-258, 84 Stat. 234 ...... 61 P.L. 92-574, 92nd Cong. 2d Sess., Oct. 27, 1972, __Stat. ee AEE ERS LTS Son vee t ESE ee ERR EEW OOS UD passim RN eo es 36 Federal Aviation Regulations: ic ps ns bn ceo tue acun 2 ee as yoshi ch Sep eee K «va ON eee eee ewe eer eee er reese eee eee eeeeee se eee ee ee ees eee eee eee eee eeeeeee oe | eS FS oP Oe LSC oe eC CROP DH Oe Ce Oe Oe ee we @. 8: €- bh Oe 2-0 0 6 & 6-0 se o's F @' 66 eee eee er weer e ere eee e eer eeeenwneeee eeeereere ee eeseeeeeeeeeeeeeeeeveee® PR Part 91 (xti) Secondary Sources: ee Cong. Rec., 90th Cong. 2d Sess., June 10,1968 ......... 4“ Cong. Rec., 92d Cong. 2d Sess., February 29,1972 .. . 3, 54,55 Cong. Rec., 92d Cong. 2d Sess., October 12,1972 ........ 55 Cong, Rec., 92d Cong. 2d Sess., October 13,1972 ........ 4 Cong. Rec., 92d Cong. 2d Sess., October 18,1972... 7.54 Hearings, H. Subcommittee of Interstate and Foreign Commerce, H.R. 12616, 85th Cong. 2d Sess., WO 8 Od Sl ee ins oc ee ie OE 29 Hearings, Sen. Subcommittee on owas S. 3880, 85th Cong. 2d Sess., 1958 ......... . 25,29, 30, 65, 67 Hearings, Sen. Subcommittee on Maal & S. 1016, 92d Cong. ist Sess., Part 2, July 12 and 13,1971 .... 58,79 H. Rep. 91-601, 91st Cong., 2d Sess., 1969, 2 U.S. Code Cong. and Admin. News, p. 3058,1970 ....... 61, 66 H. Rep. 92-842, 92d Cong. 2d Sess., 1972 ............. 53 S. Rep. 1811, 85th Cong. 2d Sess., 1958 ....... 11, 24, 28, 43 S. Rep. 1353, 90th Cong. 2d Sess., 1968 .............. 49 Other References: Aviation Cost Allocation Study, Working Paper No. 5, Department of Transportation, July,1972 ......... 6 Aviation Cost Allocation Study, Working Paper No. 7, Department of Transportation, July, 1972 ......... 6 Business Aircraft Specifications, Studies in Business Policy, No. 132, National Industrial Conference Board, 845 Third Ave., New York, New York, (c) SESS Ee lee Sch aah Er icicle as eae 5 General Aviation Operating Costs, Department of . Transportation Policy Study, February, 1969 ... * Joint NASA-DOT Civil Aviation R & abe Study, March, 1971 (xiii) ‘ ment and Analyses of Noise from Seventeen craft in Level Flight, Tanner, Department of Te NS Ae | 1) On a ern 6 | utiet, Vol. VI, No.4,p.137 ............0.... 2 IN THE PREME COURT OF THE UNITED STATES é OCTOBER TERM, 1972 No. 71-1637 OE THE CITY OF BURBANK, et al, Appellants, LOCKHEED AIR TERMINAL, INC., et al., Appellees. ON APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF AMICUS CURIAE ON BEHALF OF THE NATIONAL BUSINESS AIRCRAFT ASSOCIATION, INC., URGING AFFIRMANCE PRELIMINARY STATEMENT Once we recognize that the future is created in , Measure by our present decisions, we become ¢ of our need to recognize that there are a! futures that we are either helping to or forestalling by our present decisions. For 2 this reason our decision-making must be based on — visions of the world.that may be realized and these . alternative futures must be developed by a labor of imagination and thought. For this reason, the phrase out.! Mr, Williams, a futurist of some repute, has set by this quotation the tone and the basis for this presentation by the National Business Aircraft Association, Inc. (NBAA), before this honorable Court as amicus curiae pursuant to Rule 42 of the Court’s rules.” Issues involving the quality of our environment are hotly debated, and rightly so, for these are life and death issues for judges, pilots, businessmen, airline executives and city officials. Like most environmental issues, the subject of aircraft noise has been the focus of a great deal of concern for all citizens, and especially those who live in and around airports. NBAA and its member companies The predicate for NBAA’s participation in this mannet will be fully revealed in subsequent presentation and argument. Mr. Williams’ cited statement, calling for the exercise of reasoned and cautious judgment does not militate against this concern, but rather, enhances NBAA’s plea that this environmental issue of aircraft 1 Charles W. Williams, Jr., “Inventing a Future Civilization” , The Futurist, Vol. V1, No. 4, p. 137, at p- 140. yt aont 2Consent for this participation was obtained by the Nation Business-Aircraft Association from the primary parties herein. Said consents are submitted with this brief. f es ae 1 e noise ‘be handled in accordance with the legislative scheme established by Congress, by those federal agencies , empowered to act and develop thoughtful solutions. @ natural reaction of those exposed to the effects of excessive aircraft noise in the tdinity of airports is to demand curtailment of that noise in any. way that brings immediate relief. Such has been the action of the City ofBurbank with the passage of No. 2216. Rather than allow a leap into a solution in the form of a limitation of hours lbenticn at airports,° it is respectfully urged that the Court permit the public’s interest in both noise controls in air commerce be served by the agencies clus empowered by Congress to handle these matters: the Federal Aviation Administration and the mental Protection Agency. the position of NBAA that a national policy of ent of aircraft noise necessitates a uniform and ited program. It is further postulated that the has been proposed and enacted by Congress, and } legislative scheme and activity thereunder have sempted the field of aircraft noise control. NBAA eves; and would convince the Court, that -a ¢ of State or local regulation in the form of rt curfews would be destructive of that uniformity a our safety, and “stand.as an obstacle to the ompushment and execution of the full purpose and chi of Congress.” Hines v. Davidowitz, 312 U.S. 52,61 S.Ct. 399 (1941). ie statement of the Hon. Rep. Mikva, Cong. Rec. H. 1534, 92nd ‘Cong 2 -oghhnahaatd 19, 1972. 4 INTEREST OF THE . AMICUS The National Business Aircraft Association, Inc., isa non-profit corporation, incorporated under the Not-For Profit Corporation Law of the State of New York. It had its original incorporation in that State in 1947. The Association has its primary offices in Washington, D.C. As suggested by its title, NBAA is the representative of more than 890 member companies located throughout the United States. In fact, it has membership in 46 States of the continental United States, and ‘the District of Columbia. A reading of the membership of NBAA could be likened to reading Fortune Magazine’s list of the nation’s 500 largest companies. The avowed purpose of the Association is to protect and promote the aviation interests of corporations operating aircraft both nationally and internationally as an aid to business, and to foster among them the highest degree of operational efficiency and safety. The role of business aviation is not widely understood by those outside the business and corporations actually engaged in it. The corporate aircraft is often construed as the private toy for the exclusive pleasure of the chief executives of a large company. Appellants in the instant case demonstrate this view by passing off the statement that— The only other flights affected by the ordinance’ were principally departures (at least three - week) of corporate jet aircraft [R. 389] .! The “corporate jet aircraft”, or business aircraft as we prefer to call them, based at the Hollywood-Burbank ! Jurisdictional Statement, at p. 9, Appellees, Vol. 1, p. 52. p vie. 5 , are the property of Union Oil Company, Sears & uck, Fluor Corporation, Ambassador College, Cal t Ways, and the Belridge Oil Company.? These es Operate equipment such as the Lockheed Jet an aircraft with a cruising speed of 570 mph and a nge of 2,450 miles, costing as much as $2,150,000; the tream II, a jet aircraft manufactured by Grumman Airctaft Corporation, an NBAA member, with a cruising seed of 590 mph, at a cost of $3,400,000; the De favilland 125, a Hawker-Siddely International, Inc., moduct, with a cruising speed of 510 mph and a range of 060 “miles, at a cost of $1,000,000: Lear jets, with crusin, speeds up to 508 mph and ranges of about 1,800 ies, costing between $805,000 to $950,000; and falcons, manufactured in France, sold through Pan American World Airways, Inc., for about $1,600,000, pruising speeds of 540 mph and a range of about miles.* m the foregoing, it is clear to see that the business it based at the Hollywood-Burbank airport have the ity of moving rapidly in interstate commerce, and ational air commerce, for long and uninterrupted Moreover, Union Oil Company has additional aircraft and additional bases at Midland and “ston, Texas, Des Plaines, Illinois, and Lafayette, @iisiana. Sears, a huge and well known corporation, has igitcraft based in Chicago as well. rr » Fluor, and Union Oil are all NBAA members. fares developed Table 1, Business Aircraft Specifications, Bment to Business Aviation Practices, Studies in Business fy No. 132, (€) 1970 National Industrial Conference Board, M5 Third Avenue, New York, New York 10022. BRS, (ae 6 The Hollywood-Burbank airport is only a sm example of the extent of business aviation’s involvement in interstate commerce. While the scheduled carriers ser about 970 airports across the United States busines aircraft can and do serve thousands of the nation’s mor than 11,000 airports.* According to the Department of Transportation, there were 1060 turbojet genen! aviation’ aircraft operating in 1972, with an expected increase to 1,145 in 1973 and to 1,227 in 1974.® In 1972 there were 790,000 operations by general aviation turbojet aircraft in the United States, with an expected increase to 960,000 operations in 1974.7 Busines aviation constitutes the majority of these aircraft and operations.* The total hours flown for business aviation in 1971 totalled 7,119,000 hours, with an average flying ‘time of 1.2 hours? per flight. The FAA has forecasted that by 1980, 12.8 million hours will be flown by business aviation operators. These factors are presented in order to demonstrate the extent of business aviation’s involvement in interstate * affidavit of Lawrence Bedore, Manager, Airport Services, National Business Aircraft Association, Inc., submitted in Township of Hanover v. Town of Morristown, 108 N.J.Super. 461, 261 A.2d 692 (1969), attached here as Exhibit I. SThe term general aviation is utilized to describe non- commercial aviation and includes business jets. © Aviation Cost Allocation Study, Working Paper No. 7, Office of Policy Review, Dept. of Transportation, July, 1972, Table B2, Appendix B. : T[bid,, App. C, Table C-1. - ® Aviation Cost Allocation Study, Working Paper No. 5, Offic of Policy Review, Dept. of Transportation, July, 1972, at p. ‘92. * Ibid. , Table 36. “@mmmerce, and the obvious interest of NBAA, on behalf fats membership, in a matter as significant as a locally ed curfew, that has the implication for broader pation as well. sophistication and pace of many business les today require the use of air transportation those businesses to remain competitive. Produc- processes and inventory distribution concepts changed as a direct result of civil aviation. production stages may be widely separated timize skills and minimize costs, while the i of air transportation helps eliminate large mtories. Speed -has also allowed businessmen to @ the sphere and rate of their activities. As a it, it has become practical,to decentralize ations and centralize management. The speed, city, and flexibility of civil aviation have Wed business to compete more efficiently in an of rapidly rising costs. Consequently, consumers ly are enjoying more products for less cost than id have been possible if business were forced to pre-World War II air transportation and other 10ds for movement of people and goods.}° ness aviation has come into being as the result of alluded to in the above quotation. The concept Corporate aircraft as an expensive toy is ited in today’s age of moving executives and tte employees to and from places that airlines do ch directly at any time of the day or night."! The business jet aircraft translates time savings into Profits, and it makes dollars and sense for large, NASA-DOT Civil Aviation Research and Development y; Report, March, 1971, at p. 4-3. 8 multi-state organizations suchas Sears and Union Oil, to move its people by company aircraft to cities unserved by air carriers or distant from air carrier airports. Th business aircraft also adds flexibility inasmuch as, corporate executive often must attend meetings or make appearances at cities served by air carriers at times when their schedules do not match his. The flights of business aircraft are regulated by the Federal Government, just as all civil aircraft are regulated. Corporate pilots must meet standards prescribed by the FAA. In most cases, these pilots hold Airline Transport Ratings, but they have no less than a Commercial Pilot’s Rating to operate a business aircraft as pilotin command.!* The special status of business aviation has been recognized by the Federal Government by the recent passage of a new Subpart D to Part 91 of the Federal Aviation Regulations, 14 CFR 91D. Under this new Subpart, business aircraft operators are held toa higher standard of care than that class of aircraft users -known as “general aviation”. One of the reasons for upgrading the regulations was business aircraft them- selves. Business jets are as fast and as complex as the jets flown by air carriers. They have similar capability m range. Although the. load factors are widely disparate, business jets use the same facilities and require much the same services as do air carriers. NBAA’s membership operating these jet aircraft, by and large, are companies involved heavily in interstate commerce, utilizing the aircraft in other than local flights, and have a real interest in the non-uniform and unregulated employment of curfew from State to State, and locality to locality. The concern hinges primarily on safety factors, but it would be less than candid for NBAA Se eee ee f "lB Bedore Affidavit, supra. y ca has been testimony in the Court below that the siti of local curfew ona less-than-uniform basis Or at airports that did not have curfew.!3 aad of course, easily translates into safety ms.!* Congestion ey calls for restricted , Severe congestions builds around busy terminal , the traditional ‘first come, first served’ of the ‘The present approach for alloting time and space 8 workable only if there is excess capacity in the stem or if users are willing to accept substantial lays. The problem is compounded because the umber: of alternate routes is limited and airborne . ays cannot be too long... .!® £3 ‘business aircraft operators are sure to fall behind f carriers in the priority established to handle nermore, the concept of congestion creating safety ns is a enatter of concern for pilots of all aircraft, ecially those of jet aircraft. In high speed and high ce ); JUAW vy. O’Brien, 339 US. 454, 70 S.Ct. 781 4950); Rosenhan v. U.S. 131 F.2d 932 (10 Cir. 1942). / 2°if there is an announced express intention to preempt the field by Congress, the States cannot exert itant or supplementary regulatory authority activity that is the subject of the preemption. Pigg v. Commonwealth of Penna., 16 Pet. 539, 10 L.Ed. 160 (1842); Charlestown & W.C RR. Co. v. Varnille Co., 237 US. 597, 35 S.Ct. 71S (1915); tern R. Co. v. Railroad Com., 236 U.S. 439, 35 S.Ct. 915); Pennsylvania v. Nelson, supra; Rosenhan vy. supra; Hines v. Davidowitz, 312 US. $2, 61 S.Ct. #7 (1941); Napier v. Atlantic Coast Line, 272 U.S. 605, 47 S.Ct. 207 (1926); Penna. R. Co. v. PSC of Penna., 250 US. 566, 40 S.Ct. 36 (1919); Perez v. Campbell, 402 37, 91 S.Ct. 1704 (1971). addition, where the intention of the State legislature @ Wegislation is to exercise its police power, and its K@ildtion is in no way intended to interfere with a Gongressional action, if the State legislation is in a Sempted area, it must fall. Perez y. Campbell, supra; la v. Barber, 136 U.S. 313, 10 S.Ct. 862 (1890). Furthermore, the Supreme Court has held that even if the State’s. action has preceded the preempting Congressional legislation, the Court can consider the later drawn statute of Congress that fills the field, and strike down. as unconstitutional the. prior State action. See Hines v. Davidowitz, supra, wherein the Supreme Court considered and found void the prior-passed Pennsylvania Alien Registration Act in light ef the Alien Registration Act passed by Congress. Also see Vanderbark », Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347 (1941); HP. Welch Co. v. New Hampshire, 306 U.S. 79, 59 S.Ct. 438 (1939). 3. Where there is an impossibility of compliance with both Federal and State enactment (so-called conflict), a holding of Federal exclusion is inescapable. Florida Lime and Avocado Growers, Inc., supra; Case v. Bowles, 321 U.S. 92, 66 S.Ct. 438 (1946); Cloverleaf Butter Co. ». Patterson, 314 U.S. 148, 62 S.Ct. 491 (1942); Perez ». Campbell, supra; Rice v. Santa Fe, supra; Colorado Anti-Discrimination Co. v.. Continental Airlines, 372 US. 714, 83 S.Ct. 1022 (1963); American Airlines, Inc. ¥. Town of Hempstead, supra; Allegheny Airlines ¥. Cedarhurst, 238 F.2d 812 (2 Cir. 1956); Castle v. Hays Freight Lines, 348 U.S. 61, 75 S.Ct. 191 (1954); Huron Portland Cement Co. v. Detroit,” 362 U.S. 440, 80 S.Ct. 813 (1960); Kelly v. Washington, 302 U.S. 1, 58 S.Ct. 87 (1937); Hill v. Florida, 325 U.S. 538, 65 S.Ct. 1373 (1945); Sperry v. Florida, 373 U.S. 379, 83 S.Ct. 1323 (1963); U.S. v. New Haven, supra; Gibbons v. Ogden, 22 U.S. 1 (1824). 7 The Huron case is relied upon substantially by Appellants. It will be demonstrated injra that it is not controlling of the issue at hand but is in fact supportive of Federal preemption in this situation. J : a or. 19 Where there is neither announced preemption, nor a F conflict, the Court has examined the circumstances © cases and determined whether or not there is an sd Federal preemption. Bethlehem Steel Co. v. N.Y. Labor Relations Board, 330 U.S. 767, 67 S.Ct. (1947); Napier v, Atlantic Coast Line, supra; Castle & Hays Freight Lines, supra; Campbell v. Hussey, supra; ». Santa Fe, supra; Florida Lime and Avocado wers v. Paul, supra; Hines v. Davidowitz, supra. judge Matthas tells us that there are four major Ne to be asked in implying preemption: + @) Is an aim and intention on the part of Congress to occupy the field revealed by the legislative history of the Federal enactment? Florida Lime and Avocado Growers, sipra; Campbell v. Hussey, supra; Rice v. Santa Fe, supra. 0) Is the Federal regulatory scheme so persuasive as ba t an intention to preempt the field? a. v. Nelson, supra; Bethlehem Steel v. N. Y. Sta le Labor Relations Board, supra. Z {) As the subject matter involved one that demands exclusiver ess of Federal regulation in order to achieve mity vital to the national interest? Florida Lime locado Growers, supra; Campbell y, Hussey, supra; ton Portland Cement Co. y. Detroit, supra; Northern Power Co. v. Minnesota, supra; American Airlines of Audubon Park, supra; Colorado Aniti- mation Com. y. Continental Airlines, supra; american Airlines v. Hempstead, supra; Head v. N.M. Seard of Examiners, supra; Hines y. Davidowitz, supra; Ugil vy, FPC, 387 USS. 428, 87 S.Ct. 1712 (1967); Mer-Bradley Local No. 1111 v. Wisconsin E.R. Board, US. 740, 62 S.Ct. 820 ( 1942): Clove Butter y. Won, supra; Penna. R. Co. v. PSC of Penna., 250 eo 20 U.S. 566, 40 S.Ct. 36 (1919); South Carolina Sta Highway Dept. v. Barnwell Bros., 303 U.S. 177, 58 S.C 510 (1938); Kelly v. Washington, supra; N.Y. Central R Co, v. Winfield, 244.U.S. 147, 37 S.Ct. 546 (1917); Townscend v. Yeomans, 301 U.S. 441, 57 S.Ct. 842 (1937); Southern Pac. Co. v. State of Arizona, 325 US, 761, 65 S.Ct. 1515 (1945); California v. Zook, 336US. 725, 69 S.Ct. 841 (1949); Local 174 v, Lucas Flour Co, 369 U.S. 105, 82 S.Ct. 571 (1962); Morgan v. Virginia, 328 U.S. 373, 66 S.Ct. 1050 (1946); Minnesota Rate Cases, 230 U.S. 352, 33 S.Ct. 729 (1913); Cooley », Board of Wardens, 53 U.S. 298 (1851). (d) The last test to be applied under this heading of implied preemption is whether the law enacted by the State stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Hines v. Davidowitz, supra; American Airlines », Hempstead, supra; Florida Lime and Avocado Growers, Inc., supra; Gibbons v. Ogden, supra. We will turn now to a consideration of these tests, applying case law, stafitory language, legislative history, or Federal regulation as applicable. The methodology of the approach will be to treat each test from the point of the impact of aircraft noise curfew upon the overriding concern for aviation safety, as well as from the aspect of the Noise Act of 1972, per se. This approach, by necessity, will involve some duplication in effort that, for the sake of clarity, is unfortunately unavoidable. B. Discussion of Tests for Preemption - as Applied to this Case ¢ (1) Test (1)—Congress has fully expressed its intention to regulate all activity involving navigable airspace, froma safety point of view. Curfew ordinances affect navigable 21 ge and impact upon aviation safety and are ore operating within a preempted area. ‘stated in an earlier part of this brief that there tive relationship between safety and the control waft noise in the vicinity of airports through It is obvious that a curtailment of travel through le airspace has an impact upon such travel. From ! sty aspect it is less obvious that a single incidence of curfew would have an impact upon safety. It was ‘explained, though, in the Court below and in our Hinary statement, that curfew, if broadly enacted ble magnitude. t decision, and the Williams? case in Arizona. | Court, as did the District Court below, can and id consider the ramifications of locally imposed , a8 its decision herein will be utilized in a flood of swariew cases should the Courts below be reversed. ng into consideration matters that naturally flow Circumstances such as those involved here would ” ship of Hanover v. Town of Morristown, 108 N.J. Super. met, 201 A.2d 692 (1969). Villar: v. Superior Court of Arizona, ae , Vacating 489 P.2d 854 (1971). a 22 not be a proceeding strange to the Court. In Southem Pacific Co. v. Arizona,* a case that dealt with the assertion of the State of Arizona that it was within its police power to regulate the length of freight. trains passing through the State as a safety measure,* the Court considered the States surrounding Arizona, and the ramifications of each State instituting a different set of rules regulating the length of trains. The potential for delays, the costs of additional manpower, equipment and possible inconvenience were all taken into account, although the only regulation before the Court was that of the State of Arizona. In Udall v. FPC,* the Court undertook to postulate a hypothesis in discussing the | ramifications of the case before it, the construction of a dam at High Mountain Sheep. Mr. Justice Douglas, writing for the Court, stated: Timed releases of stored water at High Mountain Sheep may affect navigability; they may affect hydroelectric production of the downstream dams when the river level is too low for the generators to be operated at maximum capacity; they may affect irrigation; and they may protect salmon runs when the water downstream is too hot or insufficiently oxygenated. At p. 435,1716. The Court’ thus reached into the ramifications of Federal versus local control, which the Court found “may conceivably make a vast difference in the functioning of the vast river complex.” At p. 435,1716. 3325 US. 761, 65 S. Ct. 1515 (1945). s “The statute was held to be a substantial burden ‘on interstate commerce and thence unconstitutional. $387 U.S.428, 87 S.Ct. 1712 (1967). 3 ‘* 7 Fi f 2 23 af exercises were involved in Local 174 y. Lucas -where the potential uncertainty of different 8 of labor contract terms under Federal and State a possibility that was considered, and in Bibb y. tight Lines,’ where the difference of standards =the States of Arkansas and [Illinois for rear mudguards on trucks was cited in a case involving RC standards.*® ‘4 tat delays in flight or diversions create a safety lem is clear from a reading of the case of American es v. Town of Hempstead.® In the Hempstead case ‘own passed a noise ordinance due to jet noise from International’ Airport. While the Court found that se levels were incompatible with sleep, religious _ entertainment, conversation, classroom activ- and were a source of distraction and discomfort, it ise found that the ordinance was operating in a ed sphere, and would not be allowed to stand. It 9 US. 521, 79 S. Ct. 962 (1959). 0 see. Crandell y. Nevada, 6 Wall. 35, 18 L. Ed. 745 (1868), the Court made the following statement: “But if the State a railroad passenger one dollar, it can tax him one thousand ‘Tf one state can do this so can every other state. And thus, More states covering the only practicable routes of travel ‘to west, or from north to south, may totally prevent or i burden all transportation of passengers from one part of mtry to the other.” BB F.2d 369 (2 Cir. 1968), Cert. denied 393 US. 1017 pree2. a 24 fell not because it was incompatible as a noise standard with a Federal enactment, but rather, because the ordinance would necessitate the creation of an unsafe condition at the airport. i Now “that the implications for safety due to a locally imposed noise regulation through curfew have been established, a short trip through the Federal Aviation Act of 1958, its legislative history, and some more of the case law will establish the fact that Congress has fully _preempted the field of aviation safety and all that touches it. a. The Face of the Act. The Federal Aviation Act of 1958 was the product of a need for a unified regulatory body, acting in the interest of aviation safety. The need was brought on by an air traffic control crisis that could be directly traced to a highly decentralized system, which permitted several government agencies and of the military to exercise a degree of control over air traffic. This lack of coordination culminated in air disasters, 4 mid-air collision of two heavily laden airliners in the Grand Canyon area, as well as mid-air accidents between military jets and civilian aircraft over Las Vegas, Nevada, and at Brunswick, Maryland." President Eisenhower, writing on June 13, 1958, to the Subcommittee of Aviation, Senate Committee on Interstate and Foreign Commerce, recognized that a lack © 105 Rep No. 1811, Committee on Interstate and Foreign Commerce, accompanying S. 3880, Federal Aviation Act of 1958, 85th Cong. 2nd Sess. July 9, 1958. 14 Jpid. , at pp. 7-8. 25 rdination between the multiple agencies involved in fansportation regulation was in large measure onsible for a breakdown in safety, and accordingly memmended that S.3880 be promptly reported out of 12 wt Le ¥ th the need established, S.3880 was produced, and ngs upon it were begun and completed in hurried ns.1° The Federal Aviation Act of 1958 was born. gn the face of the Act, without delving into the sla history, one can clearly see that the Adm tor of the FAA was given broad and exclusive us. Section 103 of the Act, 49 USC 1303, provides fiat the Administrator shall have the power to regulate iit commerce “in such manner as to best promote its pment and safety ...”; to promote and encourage tvelopment of civil aviation; to consider research ‘and development with respect to the operation of air avigation facilities, as well as their installation and Operation; to develop a “common system of air traffic trol and navigation for both military and civil aircraft; “to control the use of the navigable airspace of the States and the regulation of both civil and lary Operations in such airspace in the interest of and efficiency of both.” ection 104 of the Act, 47 USC 1304, declares as tional policy the public right of freedom of transit igh the navigable airspace of the United States. state Foreign Commerce, 85th Cong. 2nd Sess., S. 3880, 16, 1958, at pp. 145-146. Also see ALPA v. Quesada, 276 "892 (2 Cir. 1960), for an outline of the legislative history on Wid. , at pp. 59, 264. ete ig Re a 26 In Sections 307(a) and (c), 47 USC 1348(a) and (¢) the Administrator’s powers are further spelled out with respect to use of airspace. il Use of Airspace (a) The Administrator is authorized and directed to 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 limita- tions as he may deem necessary in order to insure the safety of aircraft and the efficient utilization of such airspace. He may modify or revoke such assignment when required in the public interest. [49 ‘USC 1348(c)]} | Air Traffic Rules (c) 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 protection 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, between aircraft and land or water vehicles’ and between aircraft and airborne objects. [49 USC 1348(c)] In Section 313(a), 49 USC 1354(a), the Administrator of FAA is given broad powers to carry out his duties. It is herein stated that— The Administrator is empowered to perform .such acts, to conduct such investigations, to issue and amend such orders, and to make and amend such general or special rules, regulations, and procedures, pursuant to and consistent with the provisions of rele af this Act, as he shall deem necessary to carry out the op ns of, and to exercise and perform his _ © powers and duties under, this Act. : “is also given power with respect to air navigation ties. Section 606 of the Act, 49 USC 1426, states: D ramps and parking 1.” “Air traffic control” has been defined as a ““eervice operated by appropriate authority to promote ‘the safe, orderly and expeditious flow of air traffic.” _ From the foregoing, NBAA believes it safe to say that there are no words of limitation in any of the ‘empowering sections of the face of the Act that would t from the concept that Congress has intended to de the field of aircraft safety regulation. From " definition of air traffic, it is clear that the mistrator has exclusive control over aircraft on the a, preparing for take off, and after take-off, as well the air. Indeed, this concept is supported by Section ) of the Act, 49 USC 1301(32), wherein it is that— ent when power is applied for the purpose of b1f until the moment when the landing run 28 b.. Legislative History of the Act. “i NBAA would convince the Court that the search need go no further than the face of the Act, but re that a more thorough analysis is called for by this most important case, we respectfully direct the Court's attention to the legislative history of the Act on the subject of Congress’ intention to preempt the area of regulation of navigable airspace. Senator Monroney, writing for the Aviation Sub committee, made it clear at the outset that Congress intended to establish a paramount authority in the regulation of navigable airspace. He states that the Administrator of FAA— , Would be rer with the management of the national airspace. . Further along Senator Monroney points out that— Aviation is unique among transportation industries in its relation to the Federal Government-—it is the only one whose operations are conducted almost wholly. within the Federal jurisdiction, and are subject to little or no regulation by States or local authorities. '* He goes on to state that— Thus, the Federal Government bears virtually complete responsibility for the promotion and supervision of this industry in the public interest.'® Senator Monroney recognized the need for an independent FAA, “with ‘plenary authority .over the Nation’s airspace....”'7 Assuming that the Sénator’s 14 Op, Cit., S. Report No. 1811, ap. 1. 15 bid. , at p. 5. 16 Tbid., at p. 5. 1 Ibid., at p.7. “4 29 ry is standard, Webster defines “plenary” as: lire, complete. It is clear, therefore, that Congress led itself to have complete and exclusive control he Nation’s airspace. The Administrator is given plenary authority in matter of air traffic rules, as well as for the Meyelopment and operation of air navigation ‘facilities.’* [Emphasis supplied. ] ‘the midst of the Senate Hearings, President Eisenhower, | Moted previously, sent a message to the Senate committee. In his message, the President stated: T recommend that the Federal Aviation Agency "be given full and paramount authority over the use “by aircraft of airspace over the United States and its Ps, erritories. . 319 f “The Senate and the House Hearings saw the same ‘Mi main theme was the need for a single, unified, Omnipotent Federal agency, subject only to the President id the Courts, regulating airspace completely, including Mat airspace in and around airports from the air traffic | of view.”° Industry was of the same view. Stuart bid. , at pp. 14, 15. Op. Cit., Hearings on S. 3880, at p. 148. Hearings, House Subcommittee on Interstate and Foreign merce, on H.R. 12616 (Federal Aviation Act of 1958) 85th g 2nd Sess., June and July 1958, at pp. 193, 253. Op. Cit., ings on S. 3380, at pp. 2, 23, 27, 28, and 29. ee Tipton, speaking for the airline industry at the Senate Hearings, maintained this view, and asserted that, in the interests of safety, one administrator must have control over all the airspace of the country.?! Mr. E. Thomas Burnard, Executive Director of the Airport Operators Council, stated: The whole system of air traffic control and airway capacity ... begins and ends at an airport. Without the precise and complete control of both military and civil aircraft on and in the vicinity of our great metropolitan airports, as well as on the airways, tragedy can occur again. And without the integrated planning of airport capacity with airway capacity, the improvement of one without the other will create an unacceptable balance.?? Senator Monroney, in response to some points raised by Mr. Burnard concerning regulation of airspace with respect to the ground thereunder, stated: We do not want to overlook anything as important as proper jurisdiction over ground areas, or approaches to ground areas that aircraft must use, as well as the airspace above them.?* Dovid H. Baker, President of Capitol Airlines, Inc., further emphasized the exclusivity of Congressional action in the regulation of airspace: 21 Op. Cit., Hearings on S. 3880, at p. 39. 22 Ibid., at p. 51. It is interesting to note that the present airport operators council international, at Section 730 of its current policy handbook, makes the statement that “disruption of airport operations through a nighttime curfew is strongly opposed.” 23 Tbid. | at p. 59. 31 _ ~The need for clear cut and single responsibility in _,sontrol of airspace requires that the Federal _ Aviation Act of 1958 be adopted with the utmost _ Glifford P. Burton, speaking for the Nation’s air traffic “oon was of the opinion that in the interest of safety all responsibility for rulemaking pertinent to air traffic should be lodged in a single agency, and that— _. The agency should have final authority on the allocation of airspace, location of airports, designa- “tion of airways or air routes, control zones, control “areas, and the establishment of airspace reservations and restricted area.?5 A.B. McMullen, Executive Director of the National Association of State Aviation officials was concerned about the absolute preemption intended by the Act.?® He therefore proposed the following mandatory language: “That nothing in the act shall be deemed to abrogate the right and responsibility of the several States to protect, under their police power, the welfare and ‘safety of their inhabitants.?” [Emphasis supplied. ] This language does not appear in the Act as passed by Congress. Senator Monroney avoided commentary upon ‘@ although he did refer to “close cooperation with state agencies on the matter of airplane plans and airport on.” It can fairly be implied , that since language Proposed by Mr. McMullen did not appear in the = eae Ie ibid. , at p. 136. Ibid., at p. 137. , at p. 742. 32 final draft of the Act, it was rejected. To reserve power in the States, under their police power, was not the intention of Congress. General E.R. Quesada, Chairman of the Airways Modernization Board (and the first Administrator of FAA), speaking for the Administration stated that— The new agency must be given full and paramount authority over allocation and use of airspace by aircraft both civil and military.2° Mr. James T. Pyle, Administrator of the Civil Aeronautics Authority, soon to become Deputy Adminis- trator of the FAA, stated: .. [Al] ir safety rules apply almost across the board. Any regulation that is issued in some way or other affects the safety of the use of airspace.%° During the Senate Hearings, testimony was received from Malcom A. MacIntyre, Under Secretary of the Air Force. On the subject of airport development, Senator Monroney, in response to a statement by Mr. Macintyre, stated: Of course the Administrator has an absolute right to withhold Federal funds from the Federal aid to airports. The section you are quoting is where the private person goes out with private funds to build {an airport]. We can’t stop them from building one but-we can stop them from ~— it. [Emphasis supplied. } Mr. Macintyre rejoined: As a practical matter we can’t stop the Port of New York Authority either if it chooses to use its own money and change its airport layout. 29 Ibid. at p. 151. 30 Ibid. ,at p. 236. 33 “Towhich Senator Monroney replied: "The Administrator of. the Federal Aviation Agency _ tan deny the entrance of flights from that airport into the airways system. He can prohibit air traffic. _ They might build the field but they sure couldn’t _ Tam not sure that you could deny the airspace to anybody unless you wrote it in the bill. Senator Momroney’s reply is clear on the point of preemption. He said: _ This [tlhe Act] gives the Administrator control Over the airspace, therefore he has the right to do _ just that. We don’t have control over the ground “Space. Persons can build anywhere they wish. As I _fead the Act, I think they could still build ground ’ facilities but they wouldn’t necessarily be able to get -aplane off into the air. * * * * * © Certainly that is the intent of the Act, and while We didn’t assume control of the ground we would ~ control the airspace.31 “$Stro language than that cited above is not to further support the concept posited in this Z., at p. 279. Oi, , atypp. 333, 334. 34 c. Court Action Concerning Federal Premption of Airspace The lower Federal Courts have uniformly handled this question of Federal preemption of navigable airspace ina manner analogous to the above discussion. American Airlines v. City of Audubon Park, 297 F. Supp. 207 (DC WD Ky. 1968), aff'd per curiam 407 F.2d 1306; ALPA vy, Quesada, supra; American Airlines v. Hempstead, supra; In re Veterans Air Express Co., 76 F. Supp. 684 (DC N.J.1948); U.S. v. City of New Haven, 447 F.2d 972 (2 Gr. 1971); Rosenhan v. U. S., 131 F.2d 932 (10 Gr. 1943). One case has reached this Court in the area of Federal sovereignty over the navigable airspace. The case dealt with the predecessor to the 1958 Act, the vil Aeronautics Act of 1938. See Braniff Airways, Inc. y. Nebraska State Board of Equalization and Assessment, 347 U. S. 590, 74 S. Ct. 757 (1954). The Braniff case probably rightly decided that the State of Nebraska could properly levy an ad valorem personal property tax on flight equipment operated by Braniff within the state. The opinion, however, handles the argument made by Braniff in the area of Federal sovereignty over national airspace in a remarkable manner. Braniff argued that, since it was regulated by the Federal Government, it could not be taxed by the State. The Court found that the language of the Cvil Aeronautics Act did not establish a preemption of control of navigable airspace, but rather asserted an exclusive national sovereignty over the airspace of the limited States. Braniff, supra, at pp. 594-596. This sovereignty was held to be exclusive insofar as it applied to foreign governments, but the Act “did not expressly Jude the sovereign powers of the states.” Braniff ra, at p. 595. fe 1938 Act is a far cry from the 1958 Act and its ie ve history analyzed, supra. It is NBAA’s belief ‘that the Braniff case is of no precedental value since the ‘paisage of the 1958 Act, and must be relegated to its “6 in history. The 1958 Act does not speak in terms of e but rather in terms of control, paramount ‘githority, plenary authority, and the like. The language recommended by the States through Mr. McMullen of NASAO, supra, designed to insure the States of their “sovereignty,” was soundly rejected in the enactment of the. 1958 Act. Braniff is not cited with favor in any of the “more, recent lower.Court holdings. We urge that it have “no positive place in this consideration. “On the issue of preemption, some would point to AQPA y. Port Authority of N. Y., 305 F. Supp. 93 (DC ED N.Y. 1969), and Port Authority of N.-Y. v. Eastern Airlines, 259 F. Supp. 745 (DC ED 1966), and argue that a weakening i in the preemptive scheme of the 1958 Act is demonstrated. The Court found in both cases that the FAA did not oppose the Port Authority in levying its ‘fees, and that no conflict with the Federal scheme existed. Rather than resulting in an interference with the safety function, the imposition of the fee schedule was of ‘enhancing effect. The action of the Port Authority, Geated by a Pact between the States of New York and ‘New Jersey with Congressional approval, did not stand as “@i obstacle to the execution of a Federal scheme of ay. Hines v. Davidowitz, supra. These lower Court decisions are of limited value to ier side of the issue. On the one hand, they are not -Tep tative of even a minor weakening in the 36 preemptive nature of congressional intention in the area of airspace regulation. On the other, the destiny of the cages had they proceeded further to the Second Circuit Court of Appeals is in question. From the legislative history cited herein, NBAA has more than a little doubt as to the wisdom of the lower Courts’ decisions in these two cases. Appellants. will no doubt argue that the Federal Aviation Act itself does not contain strong preemptive language. In fact, they may say that the language contained in the Act is in no way preemptive, and cite Section 1106, 49 USC 1506, which states: Remedies Not Exclusive Nothing contained in this Act shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of the Act are in addition to such remedies. It is important to note that this section addresses itself to remedies exclusively. The section has been interpreted as: permitting actions in State courts on contracts concerning aircraft, commercial matters, and aircraft torts. A Federal tort action has not been created by way of the enactment of the Act. Porter v. South Eastem Aviation, Inc., 191.F. Supp. 42 (DC MD Tenn. 1961). Rosdail v. Western Aviation Inc., 297 F. Supp. 681 (DC Colo. 1969); Colonial Airlines, Inc. v. Janas, 202 F.2d 914 (2 Gir. 1953) (interpreting language in the 1938 Act identical to that employed in the 1958 Act): Mack ¥. Eastern Airlines, Inc., 87 F. Supp. 113 (DC Mass. 1949) (interpreting the identical language in the 1938 Act). As a final point under this heading, we diyect our attention to Appellants’ statement in their Jurisdictional Statement concerning the case of Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531 (1962). Appellants 33 pp. 14, 15, 16 of Appellants’ Jurisdictional Statement. 37 m that if this Court finds an absolute preemption by Congress, a review of the Griggs case is in e! , Appellants hereby attempt to raise the bugaboo of ssive governmental pay-offs for noise “taking” in and _ around the area of airports, should it be found that FAA, 3 ‘acting for Congress, has plenary authority in the regulation of airspace. It is submitted that, Justice Douglas, writing for the Court in Griggs, in no way limited the Government’s paramount control over safety in the decision. It is further submitted that the case dealt with a “taking” problem, and the Administrator of FAA, in prescribing tions in controlling airspace from a safety point of view at the locality selected by the airport operator, is ‘not involved in any taking. The airport operator, in order to obtain Federal participation, must himself “take” and pay just compensation for all the land necessary to insure safe operations at the airport. A holding in this Court that the Administrator, acting for Congress, is the paramount authority with respect to the safety of all ~ flights in navigable airspace would not disturb the holding in Griggs, supra, in any way. Since noise regulations ‘impact upon safety standards, it must also be concluded that the Administrator’s implementation of noise standards would likewise be divorced from “taking” tions. “Taking” and supreme authority in gulating safety in air commerce are by no means ntical. If this were not so, every enactment of Federal legislation would result in a “taking” of one form sidere”] under test one, clearly establishes that safety flight is the exclusive domain of the Federal femment. Since airport curfew has an impact upon 38 safety, it is a logical conclusion that locally imposed curfew would operate in a preempted area. 3 2) Tests (2) and (3)—Compliance with locally imposed airport curfew would collide directly with Federally imposed safety standards, and with the authority of the Civil Aeronautics Board. Supplementary regulation on the part of Burbank may not stand. We have expended a considerable amount of words at this point in arguing that locally imposed curfew ordinances such as the one in issue would create a havoc with respect to the flow of air commerce. It is plain that we do not have an actual conflict situation here with respect to forthcoming Federal noise regulations, since those have not yet been enacted. What we have, as argued before, is a mandate by a local authority that impinges upon a nationally enacted Federal scheme of air commerce, and herein lies the conflict.' That the conflict is not head-on is not of paramount concern. We have stated before that noise ordinances of this sort are direct safety ordinances. American Airlines v. Town of Hempstead, supra. Furthermore, a conflict can be once removed from direct confrontation, as in Perez v. Campbell, 402 U. S. 637, 91 S. Ct. 1704 (1971). In Perez, supra, an action was brought in a Federal District Court in Arizona for an injunction and 4 declaratory judgment, declaring a section of the Arizona Motor Vehicle Safety Responsibility Act unconstitu- tional. After the District Court dismissed, and the Court of Appeals affirmed, 421 F.2d 619, this Court reversed 'FAA has some noise regulations in the form of regulation in the form of regulation of noise at the source, 14 CFR Part 36, and in locally oriented preferential runway system. These items will be discussed under test (4). ‘and remanded. The Court of Appeals rested its opinion ‘pon the cases of Kessler v. Dept. of Public Safety, 369 U.S. 153, 82 S. Ct. 807 (1962), and Reitz v. Mealey, 314 US. 33, 62 S.Ct. 24 (1941). In Kessler and Reitz, financial responsibility laws were considered to be within the police power of the state, even though they conflicted with the Federal Bankruptcy Act. This Court, in reversing, considered Kessler and Reitz to be “aberrational doctrine.” The facts which the Court considered in Perez were as : The Arizona statute required that a driver who nen a judgment due to an automobile accident will his driver’s privileges until he demonstrates financial geeponsibility or satisfies the judgment. While a statute guch as this appears to be entirely local in nature, the matter becomes complicated when the driver declares personal bankruptcy and is discharged in bankruptcy with respect to the judgment, for while the obligation to pay the judgment may be gone, the driver’s road Privileges are still suspended under the Arizona Act. The question’ before Mr. Justice White and this Court was Whether the Arizona statute was in conflict with the Bankruptcy Act of the United States. ». Mr. Justice White, writing for the Court, stated that he Viewed the Court’s obligation in a conflict case to ‘certain the construction of the two Acts involved, and ‘fo determine whether any conflict exists. He wrote, citing Hines v. Davidowitz, supra, that in the final analysis the ourt’s function is to determine whether a challenged ‘State Statute “stands as an obstacle to the accomplish- Ment and execution of the full purpose and objectives of > * Also see Castle v. Hays Freight Lines, 348 US. 61, 75 S.Ct. (1954). ahi » a 40 If a conflict exists in any way, the Federal scheme must prevail, even though it may be a more modest, less” pervasive plan than that of the State. Rice v. Santa Fe, supra; Napier v. Atlantic Coast Line, 272 U.S. 605, 47 S.Ct. 207 (1926). It has been stated, on the subject of conflict, that- The test of whether both Federal and State regulations may operate, OF the state must give — way, is whether both regulations can be enforced without impairing the Federal superintendence of the field, not whether they are aimed at similar or different objectives. Florida Lime and Avocado Growers Association, supra., at p. 142, 1217. It would be a vain act for Appellants to argue that the noise ordinance is not a safety ordinance, for it undoubtedly affects safety. Even if it were accepted, arguendo, that the noise ordinance was aimed at 2 different area of regulation, it would be an impotent argument. Napier v. Atlantic Coast Line, supra; Pennsylvania R. Co. v. PSC of Pennsylvania, 250 US. 566, 40 S. Ct. 36 (1919). B Nor would it be worthwhile for Appellant to argue that the Burbank Ordinance is supplementary to the Federal scheme. If there is an intention to preempt the field on the part of Congress, supplementary regulation on the part of State or local governments may not be credited. Prigg v. Pennsylvania, 16 Pet. 539, 10 L. Ba. 1060 (1842); Charlestown and W.C.R.R. Co. ¥ Varnville Furniture Co., 237 U.S. 597, 35 S. Ct. 715 (1915). ot Because of the widespread impact of curfew @™ aircraft operations, Appellant may not be heard to argue that the ordinance is of a local nature, that the problem is one indigenous to Burbank and ‘that Congress may 41 mably be expected never to deal with it. South rolina State Highway Dept. v. Barnwell Bros., 303 “$$. 177, 58 S. Et-S10 (1938). + “Addressing ourselves, therefore, to establishing that _ this conflict exists, we turn to an examination of the ‘National Air Transportation System first, and secondly to “the direct conflict between curfew and the Federal ‘Aviation Act of 1958, as it applies to the Civil Aeronautics Board. "Mr. Clifton F. Von Kann, Vice President of the Airline ‘Transport Association, testified at the trial below with ‘respect to the National Air Transportation System or 4 NAS.? He testified that the NAS is. comprised of the ound system or the airport complex, the airway system, ‘which directly involves the air traffic control system, and ‘Mie fleet of aircraft operating in airspace. Regulation of is system is split between FAA, in the safety area, and . Benjamin L. Freiman, Chief of the Los Angeles lit Traffic Control Center, was called at the trial below ‘® discuss the concept of air traffic flow, an important nent of the NAS. His operation at the Center handles it 3,000 aircraft a day, in an area extending toward ‘Me South to the U. S.—Mexican border, toward the East 4% the Colorado River, toward the North to mid- fornia, and about 150 miles seaward toward the West. “The area covers 184,000 square miles.5 The objective of Me Center is the safe and expeditious utilization of Ispace.© He testified with respect to a step-by-step a _* Appellees Appendix, p. 257. ) “Appellees App., p. 186 et seq. 4014, ,p. 187. 014, , p. 188. 420 instrument flight through the area regulated by ‘th Center.’ The description includes the necessities for flight separation, both vertically and horizontally, time spacing, routing, and passing the aircraft from tower to control center to tower. The scheme becomes more complex the longer the distance, the zreater the duration of the flight, and the more aircraft in the air. All these concepts are involved in flow control.® Flow control isa specialty within a Center,’ and special teams are assigned to its various aspects. Flow control has become such an important part of NAS that a centralized scheme or flow control plan has been established by FAA in Washington. The Washington Flow Control Center is charged with the responsibility of alleviating airway saturation at peak periods, and coordinating the air traffic system.'° From this analysis on the record, it must be readily apparent that a very complex, coordinated and fragile system is at work. A breakdown at any time may well cause a hazardous situation. Congestion no doubt causes delays and diversions. Curfew, unless integrated into this flow control system, and the National Air Transportation System, must undoubtedly be as frustrating to the end of safety as congestion and delay. Locally imposed curfew would be an impairment to a well-structured system of Federal superintendence, and thence represent a real conflict. Turning next to a consideration of the impact of curfew upon the area of authority exclusively left in the [bid., pp. 189-192. 8 fbid., p. 193. *Tbid. , p. 194. 19 Thid. , p. 195. 43 able hands of the Civil Aeronautics Board, we would tind the Court that NBAA'’s membership is not d by the Board, but by FAA. Since the question ict has no boundaries, we did not feel compelled it arguments solely to NBAA’s areas of operations. were exhibits and testimony in the Court below ing the role of the CAB. There is no question that is paramount with respect to regulation of the onc aspects of interstate air transportation. The CAB was established as plenary authority in this area in 1938, and the 1958 Act did not change its status." ‘ The CAB certificates all interstate air transportation, 49 USC 1371(a). It regulates all schedules, routes, ‘equipment utilized, and airports utilized, 49 USC 437K). No part of the certificate of an air carrier may Modified in any of these respects without Board oval, 49 USC 1371(g). These powers apply to larly scheduled carriers, as well as supplemental ers, 49 USC 1371(n). Foreign air carriers are ulated by the Board as well, with respect to their erations on U. S. soil or in U.S. airspace, 49 USC 1372. tes charged by air carriers are regulated, 49 USC The Board is empowered to inquire into air carrier gement, 49 USC 1385, and issue exemptions from ulations, 49 USC 1386. In carrying out its assigned , the CAB has enacted a comprehensive scheme of ulations, 14 CFR 200-399.110. urfew at Burbank would be in direct conflict with F Board’s authority. United Air Lines, Western Airlines, ‘West, and Continental Airlines all use the Bs $. Rep. No. 1811, Senate Committee on Interstate and ign Commerce, accompanying S. 3880, 85th Cong. 2nd Sess., 44 Hollywood-Burbank Airport for regularly scheduled flights, and as an alternate airport to Los Angeles airport when weather conditions there require it. These airlines are regulated by the Civil Aeronautics Board as described, supra. It is patently absurd to assume that, should any or all of these airlines approach the CAB with a request to institute a flight after 1:00 P.M. or before 7:00 A.M.., the curfew hours, the Board would consider itself bound by the Burbank Ordinance. Burbank may no more regulate this aspect of airline economics than it may approve a tarrif schedule for United, or sanction the merger of Continental with Western. Appellant would point toythe case of Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813 (1960), claiming that no conflict exists in the instant case, and base this claim on circumstances in Huron considered to be factually similar to this case. The Courts below have distinguished Huron. In Huron the constitutional validity of certain of Detroit’s Smoke Abatement Code was drawn into issue. The case therefore dealt with an environmental issue, as does this one. Appellants therein were owners of a fleet of transport vessels operating on the Great Lakes. Two of their vessels were equipped with fired Scotch marine boilers, which had to be fired up and cleaned periodically while the vessels were docked so as to keep deck machinery operative. When the fires were cleaned, smoke emissions from the boilers violated the maximum density permitted under the Detroit Code. The parallel between that situation and this is obvious. While taking off and landing, aircraft at Hollywood-Burbank aircraft may exceed the tolerances of the community, and led to the enactment of a curfew. 45 There all similarity ends. Instead of a curfew, the owners Of the boats were subjected to criminal sanction. The Court found that the Detroit Code was a legitimate exercise Of police power. The exercise of this power was not found to be without the limitations imposed thereupon by the Courts. In discussing these limitations, the Court set forth the applicable tests for preemption, conflict, and substantial burden on interstate commerce. None of these tests were met, and appellants failed in their appeal. The Court stated that intent to preempt— is not to be implied unless the act of Congress fairly interpreted, is in actual conflict with the law _ of the State. Huron, supra, at p. 443, 816. In considering burden on interstate commerce, the Court stated that the Constitution— never intended to cut the States off from legislating on all subjects relating to the health, life, and safety of their citizens; though the legislation might indirectly affect the commerce of the country. Huron, supra, at p. 443, 816. But, the Court added, that— A state may not impose a burden which materially affects interstate commerce in an area where uniformity of regulation is necessary. Huron, supra, at p. 444, 816. In discussing the Federal legislation, the Court concluded that it was aimed primarily at and limited to affording protection “from the perils of maritime navigation.” Huron, supra, at p. 444, 817. Comparing the Court’s decision to our situation at this point, NBAA respectfully. points out that. there is an actual conflict between Federal enactments and the 46 Burbank Ordinance. Further, there is an expressed — intention on the part of Congress to regulate all of navigable airspace insofar as safety is involved, and this obligation extends beyond safety in flight to safety of — persons and property on the ground. Furthermore, the Burbank Ordinance invades an area so charged with a need for uniformity of regulation that few who have travelled in an aircraft will argue with the concept. It was argued that i in Huron that the mere licensing of the vessels by Federal authority would manifestly constitute a preemption. The Court struck down this argument. The Court went on to add that Detroit, in enforcing the Code iftvolved, did “not exclude any vessel from the Port of Detroit, nor did it destroy the right of free passage.” Huron, supra, at p. 448, 818. In the case before this Court, the Federal government does more than license aircraft and crew. It regulates every movement of an aircraft from the time its engines are started for take-off, until it has completed its roll-out and has reached its parking spot. It regulates each aspect of air cartier economics. It plays a role in airport placement and use, and selection and installation of air navigational facilities.'2 There are no parallels between the extent of Federal involvement with aviation and the two boats owned by appellant in Huron, supra. Indeed, the Court in Huron gives us some valuable clues in handling the Burbank situation. It tells us that, after all, no vessel was denied entry to Detroit’s ports. Yet Burbank would deny those entitled to utilize airspace at the Hollywood-Burbank airport. The Court tells us that Detroit denied no one the right of free passage. Burbank would deny aviation users that right, guaranteed them by the Federal Aviation Act, at the Hollywood- Burbank airport. 1249 USC 1349, 1350, 1348(b), 1353. 3 47 3) Test (4)—If it should be found that the announced preemption discussed in Test (1) is not sufficient, or that an actual conflict between the Federal enactments and Burbank Ordinance does not exist, then this Court should affirm the Courts below, for clearly there is an implied Federal preemption of navigable airspace as it is affected by aircraft noise and safety. This last test suggested by Chief Justice Matthas surely must be found to apply to the case before the Court. In discussing it, we will break it up into its various elements. a. The Aim and Intention on the Part of Congress With Respect to Aircraft Noise, was to Occupy the Entire Field. We have already discussed the Federal Aviation Act of 1958 with respect to Congressional intention in the safety areas, and we have indicated a direct relationship "between noise and safety resulting in a direct preemption. It is also apparent, in reading the Noise Act of 1968 which added Section 611 to the Federal Aviation Act of 1958 (49 USC 1431), as well as the recently passed Noise Act of 1972! amending Section 611, that a cogent argument can be addressed to the intention on the part of os Congress to occupy the area of regulation of aircraft noise, not only from a safety point of view, but from a - noise point of view as well.? 'P.L. 92-574, 92nd Cong. 2nd Sess., October 27, 1972 Stat. 2NBAA- has elected to treat this matter under this test rather than in Test (1) because of some ambiguity in the language in the preemption sections of the 1968 and 1972 enactments. The intention to preempt, however, is there. 48 1. Discussion of the 1968 Noise Act. Turning first to Section 611 of the Federal Aviation Act, as originally enacted by Congress as Public Law 90-411 in 1968 (hereinafter referred to as the 1968 Noise Act), we find that the Administrator of FAA was required by Congress, within the framework of the Federal Aviation Act of 1958, to 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 application of such standards, rules and regulations in the issuance, amendment, modification, suspen- sion or revocation_of any certificate authorized by this title. [ §611(a).] The Administrator is required to consult with such Federal, State and interstate agencies as he deems appropriate. [ §611(b)(2).] In considering this enactment, Hon. Congressman Pickle spoke in support of H. R. 3400. He stated that— The Committee, in narrowing the governmental responsibility, requested the noise functions in FAA, which is a part of DOT. Perhaps, more importantly, the Committee made the authority mandatory, rather than discretionary, to assure that the job would be carried out quickly. We have to relate noise abatement with safety and this must be realized by all citizens. It is not enough to simply obtain noise abatement. We must have abatement but still maintain safety standards.* {Emphasis supplied. ] 3Remarks of Hon. Cong. Pickle, H.4707, Cong. Record, 90th Cong. 2nd Sess., June 10, 1968. 49 In requiring the FAA to act, and adding this requirement to the 1958 Act, Congress clearly intended to preempt the noise area. Interestingly enough, Congressman Pickle reaffirms NBAA’s contention that aircraft noise control and safety are inextricably entwined. Senator Monroney, writing for the Senate on the House Bill that was enacted, provided some language in the area of Federal-State relationships. From the face of the 1968 Act, it appears that the only duty of the Administrator is to consult with State governments as he deems necessary. In the Senate Committee report, however, a slight confusion is created. Senator Monroney stated: It is not the intent of this Committee in recommending this legislation to effect any change in the existing apportionment of powers between the Federal and State and local governments.‘ It is unfortunate that this language has been seized upon to confuse a clear intent to preempt. Prior to making this statement, the Senator wrote: The bill is an amendment to a statute describing the powers and duties of the Federal Government with respect to air commerce. As indicated earlier in this report, certain actions by State and local public agencies, such as zoning to assure compatible land use, are a necessary part of the total attack on aircraft noise. . . .5 [Emphasis supplied. ] 45. Rep. No. 1353 on H.R. 3400, 90th Cong. 2nd Sess., July 11, 1968, at p. 6. ‘Ibid. , at p. 6. Br es 50 The italicized reference is to a statement made bee Senator Monroney earlier in the report that planning for land use in areas near airports is a matter largely with the province of State and local governments.® a Senator Monroney, after he made the statement we consider confusing of the issue, went on to cite and quote ' the Secretary of DOT’s letter to the Committee of June 22, 1968, and stated that the Committee concurred in the views expressed therein. The Courts have held that the Federal Government presently preempts the field of noise regulation insofar as it involves controlling the flight of aircraft. Local noise control legislation limiting the permissible level of all overflying has recently been struck down because it conflicted with Federal regulation of air traffic. 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 power to control noise by regulating the flight of aircraft. [Emphasis supplied. ] 7 Senator Monroney, after adopting this language, added that: Of course, the authority of units of local government to control the effects of airport noise through the exercise of land use planning and- zoning power is not diminished by the bill.® ®Ibid., at p. 2. 7The Secretary is referring to the Hempstead Case, supra. 8 Ibid. , at p. 7. 51 From the foregoing, the following analysis is made. The 1968 Act was an amendment to the Federal Aviation Act of 1958. Absent an intention expressed by Congress to treat it differently, the 1968 Act must be considered within the framework of*the 1958 Act. It is clear from. the cited statement by Congressman Pickle that Congress intended to apply all that went into the 1958 Act to the 1968 statute. The next point to be made is that, from NBAA’s study of the 1958 Act, supra; it is clear that all aspects of flight through navigable airspace are preempted by Congress. The graphic exchange between Mr. MacIntyre and Senator Monroney reported supra amply demonstrates that all aspects of flight in and around airports are included. Even without support from the 1958 Act, it is clear from the Report on the 1968 Act that there was no intention to leave authority over aircraft flight in the area of noise regulation to the States or local governmental - units. Though it is stated that there is no intention on the part of Congress to change the apportionment of power between the State and Federal Government, in order to” understand what this means, we must unravel exactly what that apportionment is. The report tells us what it is. The State and local governments have authority in the area of land use planning and in zoning, and that is all. The 1958 Act was clear on the subject, and no change was intended by the 1968 Act. What can be clearer than the statement by the Secretary of Transportation, adopted in full by the reporting committee, to the effect that “state and local governments. will remain unable to use their police power to control noise by regulating the flight of aircraft?” {Emphasis supplied. ] $2 Curfew which prohibits the take-off of aircraft . undoubtedly a regulation of the flight of aircraft. We urge the Court to recall Section 101 (32) of the 1958 Act, defining flight on aircraft; An aircraft is considered to be in flight from the _ moment when power is applied for the purpose of . take-off until the moment when the landing run ends. Virtually every operation of an aircraft is considered to be “flight.” Further, the Act intends to regulate not only flight, but aircraft operations as well. Operation of aircraft is defined by 49 USC 101(26): | ‘Operation of aircraft’ or ‘operate aircraft’ means the use of aircraft for the purpose of air navigation and includes the navigation of aircraft.? Operation, then includes flight of aircraft. The Administrator clearly has exclusive jurisdiction over all aircraft operations on the ground and in flight at the Holly wood-Burbank airport, and a clear intention to preempt can be construed as a part of the 1968 Act. 2. Consideration of the 1972 Act. The Noise Control Act of 1972'° contains, among other things, an amendment to Section 611 of the Federal Aviation Act. The change was one of great moment to the FAA, for it gave FAA a partner in 9FAA has added a Section 91.10 to its regulations, 14 CFR 91.10, to include within the definition of operation of aircraft the act of taxiing or maneuvering at gates. The new definition was proposed in NPRM 66-36, 31 F.R. 13352, October 14, 1966, and was adopted as amendments 1-13 and 91-43 in 32 F.R. 9640, July 4, 1967, after notice and comment. 10P 1 92-574, 92nd Cong. 2nd Sess., October 27, 1972, ___ Stat. regulating aircraft noise—the Environmental Protection Agency.'! There was no intention to weaken the Federal preemption or allow a greater role on the part of State or local governments with respect to regulation of aircraft noise. 53 a. The Preemption Section of the 1972 Act. The preemption section of the 1972 Act is located in Section 6(e), but it does not apply to aircraft noise. Section 6 is discussed in the House Report, and it is expressly stated, in parentheses, that The preemption provision discussed in this paragraph does not apply to aircraft. See discussion of aircraft noise below. [H. Rep., at p. 8.] If this preemption in Section 6 applied to aircraft, Appellants would have some basis for arguing that locally imposed curfew would be permitted, for the report specifically states that with respect to non-aircraft noise: Localities are not preempted from the use of their well-established powers to engage in cur- fews....{H. Rep., at p. 9.] The previous language to this citation removes it, however, from consideration. In amending Section 611 of the 1958 Act, the Committee report states that— 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 11H Rep. No. 92-842, accompanying H.R. 11021, 92nd Cong. 2nd Sess., Feb. 19, 1972. The addition of EPA was necessitated to protect the public interest; and to hurry along FAA activity in implementing noise control measures. At p. 8. 54 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. (At - p. 10.) - Congress, therefore, did not intend to disturb the preemption with respect to aircraft noise established by the 1968 Act, discussed previously. NBAA would have the Court accept this statement and analysis, and find a Congressional intention in the 1968 and 1972 Acts to preempt the field of aircraft noise regulation. b. Other Aspects of the Legislative History of the 1972 Act. The 1972 Act was the subject of much debate. Bills covering the matter were introduced in both houses.!? The bill finally adopted was the House version,'* being marginally different from the Senate version. '* The House bill was reported out of committee on February 19, 1972, and was passed by the House aftera short debate on February 29, 1972.'> The Senate bill was reported out of Committee on September 19, 1972, and was passed by the Senate on October 13, 1972, but the House bill was adopted on October 18, 1972.'° It is interesting to note that the House considered the subject of Federally imposed curfew, and rejected it. 12Some 11 bills concerning environmental noise were introduced in the House between March 1, 1972, and July 31, 1972. 7 } 13 R. 11021. 145 3342. 15Cong. Rec., 92 Cong. 2nd Sess., H. 1508, Feb. 29, 1972. 16Cong., Rec., 92 Cong. 2nd Sess., S. 18014, Oct. 13, 1972. Cong. Rec., 92 Cong. 2nd Sess., S. 18646, Oct. 18, 1972. 55 Three bills entertaining curfew as a viable answer to the aircraft noise problem were introduced, H.R. 13919, H.R. 16110, and H. R. 15500, but were never reported out of the Committee. On February 29, 1972, the date of the passage of the House Bill, an amendment to it was . considered by the House. Congressman Mikva, the author of one of these bills, suggested the amendment which | would set up a curfew commission in the area of aircraft noise pollution. The House considered the amendment, and rejected it.!7 ~The Senate, too, had its rendezvous with curfew. On October 12, 1972, Senator Muskie, a sponsor and co-author of S.3342, recommended an amendment requiring the Environmental Protection Agency to publish regulations on the issue of aircraft noise. This amendment was rejected.!8 Senator Muskie then proposed a second amendment which would permit states and localities to adopt “‘more stringent controls” in the noise area and the “ability to enforce them.”!? This amendment was designed to allow the States and local governments to regulate aircraft noise through curfew. Senator Muskie stated that he would not— '7Cong. Rec., 92nd Cong. 2nd Sess., H. 1534-1536, Feb. 29, 1972. '8Cong. Rec., 92nd Cong. 2nd Sess., S. 17753-17754 and S. 17776, Oct. 12, 1972. It cannot be said that Congress did not entertain the immediate implementation of noise standards by EPA. Therefore, the argument that Congress has not regulated in the field and has not considered regulating cannot stand. 19 Ibid. , at S. 17782. 56 support Federal preemption which protects product manufacturers and the air transportation industry... .” The amendment was rejected.?! 2 , Senator Muskie expressed his views on the final version of S.3342 and H.R. 11021 in a minority statement accompanying the Senate Report on the 1972 Act. In this statement, Senator Muskie makes it clear that he considers the field of aircraft noise to be preempted by Congress.?* He also states that the final version of the Act would prohibit the localities from enacting regulations intending a “modification in hours of airport _ use.”?? Thus permission for locally imposed curfew was _ considered by Congress, and rejected. | The legislative history of the 1972 Act is replete with statements that lead to the conclusion that Congress has specifically preempted the area of aircraft noise, and - therefore has lodged responsibility in FAA and EPA. b. The regulatory scheme with respect to safety and noise control is so pervasive that, in itself, it represents an intention on the part of Congress to preempt the field. The Court has recognized that air transportation is regulated by a comprehensive scheme, and_ such regulation is necessitated by the nature of the air transportation industry. See Chicago and Southern 20 Ibid. , at S. 17784. 21 Ibid. , at S. 17785. 22 Minority Report on S. 3342, Report No. 92-1160, 92nd Cong. 2nd Sess., Sept. 19, 1972, at pp. 22 and 23. 23 [bid. , at p. 25. a 57 Airlines v. Waterman S.S. Co., 33 U.S. 103, 68 S.Ct. 431 (1948). We had discussed the pervasive Federal regulations in the area of conflict with respect to safety and with _fespect to economic controls. In that section brief mention was made of conflict between noise regulation by FAA and locally imposed measures. We. will expand upon that subject in this heading. We will not discuss regulations issued under the 1972 Act for tnere are none as yet. We recall, though, that an amendment to the 1972 Act requiring EPA to issue regulations was entertained by the Senate and rejected. We have cited two cases that hold if, in a preempted area, a State or local government is doing more than the Federal government in the way of regulating, the local enactment must still fall. See Northern States Power Co. v, Minnesota, 447 F.2d 1143 (8 Cir. 1971); Charlestown and W.C_R.R. Co. v. Varnville Furniture Co., 237 U.S. 597, 35 S.Ct. 715 (1915). Justice Holmes, Writing for the Court, stated: When Congress has taken the particular subject matter in hand, coincidence is as ineffective as opposition, and state law is not to be declared a help because it attempts to go farther than Congress has seen fit to go.' Varnville, supra, at pp. 604, 717. Also see Napier v. Atlantic Coast Line, 272, U.S. 605, 47 S. Ct. 207 (1926). a 58 3. FAA has enacted regulations in the area of noise control. In accordance with the mandate provided by the 1968 Act, FAA enacted a new Part to its Regulations, Part 36 (14 CFR Part 36). It was adopted on November 3, 1969, but published in 34 F.R. 18355, Nov. 18, 1969, effective December 1, 1969. Its purpose was to provide noise standards for type certification of subsonic transport aircraft and subsonic turbojet aircraft of any category. In addition to Part 36, FAA has undertaken the imposition of preferential runway systems, and noise abatement programs tailored to the needs of the individual airports.2 There cannot be an adoption of a uniform noise abatement procedures for take-offs and landings across the United States because of the special geographical properties of each locality that would impede such a program.? However, in the interest of safety of flight,,the procedure adopted, though varied from airport to airport, must be imposed by a centralized authority. Mr. John H. Shaffer, Administrator of FAA, summed up this position in his testimony to the Aviation Subcommittee in 1971. I remind all of us that the first mission of FAA is the safety of flight. We can reduce noise by redesign of the machine, the airframe, with the power plant, combination in the aircraft. We can work with the communities to consider the “receiver” of the 2Hearings, Subcommittee on Aviation, Senate Commerce Committee, on S. 1016, 92nd Cong. Ist Sess. Part 2, July 12 and 13, 1971, at p.672. Also see testimony of Roman Lemmer, Appellees App., p. 316 et seq. 3 Op. Cit., Sen. Hearings, at p. 683. ae 59 sound—the people who live nearby. But the changes we make must not compromise the safety, health and welfare of those who fly—the pilots—flight crews, and passengers. Each change, each step, must be tested. We must ask each time—is this the safe as well as the right thing to do?* [Emphasis supplied. ] The FAA’s regulations may not be as extensive as expected or desired by the City of Burbank, but all the consequences of the curfew must be considered. Udall v. FPC, 387 U.S. 428, 87 S.Ct. 1712 (1967). It is suggested that if the remedies promulgated by FAA to date are not stringent enough, application be made to FAA for relief. See Texas and Pacific R. Co. v. Abilene, 204 U.S. 426, 27 S.Ct. 350 (1906). 4. FAA has enacted a comprehensive set of safety rules that pervade the area. We need only refer briefly to the fact that FAA has . totally regulated operational safety in airspace. FAA type vertificates aircraft, aircraft appliances, aircraft products, and aircraft parts (14 CFR Part 21 et seg. ). FAA provides for complete airworthiness standards for all types of aircraft (14 CFR Parts 23, 25, 27, and 29). It even provides airworthiness standards for manned free ballons (14 CFR Part 31). Airworthiness standards are prescribed for aircraft engines (14 CFR Part 33); propellers (14 CFR Part Ef and materials parts, appliances and products (14 CFR Part 37. Part 37 sets’ forth technical standards for production of these items). FAA has a system for inspection and direction of repairs on all aircraft, engines, propellers, appliances, or ‘Ibid. , at p. 675. a aircraft products (14 CFR Part 39). It prescribes the methodology for maintenance, preventative maintenance rebuilding or alteration (14 CFR Part 43), and regulates identification and registration markings on all aircraft, engines, propellers, applicances or aircraft products (14 CFR Part 45). Registration of aircraft is covered by 14 CFR Part 47. Recordation of aircraft conveyance and security documents is regulated in 14 CFR Part 49. Part 61 of the Regulations, 14 CFR Part 61, is devoted to a comprehensive scheme of certification of pilots and flight instruction. Part 63, 14 CFR Part 63, is concerned with flight crew members other than pilots, while 14 CFR Part 65 is involved with airmen other than flight crewmembers. Part 67, 14 CFR 67, sets forth a vast system of medical standards. * FAA regulates the use of airspace in Parts 71 through 77, 14 CFR Parts 71-77, and includes therein designation of airways, low area routes, controlled airspace and reporting points. Jet routes are established, as well as high area routes. Part 77 regulates objects affecting navigable airspace, including obstacles in the area of airports. Air traffic and general operating rules are found in Parts 91 through 105, 14 CFR Parts 91-105. These parts contain general operating and flight rules, special air ffic rules and airport pattern rules, regulations concerning instrument flying altitudes, standard approach ocedures, security control of air traffic, rules pertinent to moored ballons, kites, unmanned rockets and | unmanned full ballons, transportation of hazardous \ materials, and parachute jumping. \\ Air carriers and those operating in air transportation are controlled by 14 CFR Parts 121-137. Pilot schools are regulated by 14 CFR 141; ground instructors by 14 CFR 61 Part 143; repair stations by 14 CFR Part 145; aviation maintenance technician schools by 14 CFR Part 147; and parachute lofts by 14 CFR Part 149. Federal aid to airports and standards thereof are governed by 14 CFR Part 151. Acquisition of U.S. land for public airports is covered by 14 CFR Part 153. Other airport rules are found in 14 CFR Parts 155-159. By Public Law 91-258, Congress added a new part to the Federal Aviation Act of 1958, Section 612, 84 Stat. 234. That Section provides for the issuance of airport operating certificates to those airports serving air carriers certificated by the CAB, and for the establishment of minimum safety standards for the operation of certificated airports. These standards have not yet been set. In reporting the bill, H.R. 14465, the House Report considered airport certification and stated: The airport is an instrumentality of interstate and foreign commerce. It is used by the public and the manner in which it is maintained and operated is vital to the public safety. It is in the public interest that the airport be certificated by the Federal Government as to its adequacy for the safe conduct of flight operations in the national air transportation system.* [Emphasis supplied. ] 5H. Rep. 91-601, accompanying H.R. 14465, 91st Cong. 2nd Sess., October 27, 1969, 2 U.S. Code Cong. & Admin. News, p. 3058, 1970. 5) 62 5. The CAB has enacted extensive rules ae regulating commercial air carriers. tes ‘The Civil Aeronautics Board’s Rules are extensive — and detailed. With respect to air carrier use of an airport, 14 CFR 202.3 requires an air carrier to apply to the Board for authority to use any airport. Section 202.6 (14 CFR 202.6) provides rules with respect to scheduled stops, and any change in service pattern must be authorized through application (14 CFR 202.4). Similar rules apply to Foreign Air Carriers (14 CFR Part 203). Inauguration or suspension of service is required in 14 CFR Part 205. Traffic and routings are regulated by 14 CFR Part 221. The aviation industry is completely and thoroughly regulated from airport-to-airport. The scheme is 9 pervasive that an intention to fully occupy the field must indeed be presupposed. , ¢. The Subject of Aircraft Noise Is Heavily Involved with Aircraft Safety, and Therefore Demands an Exclusivity of Federal Regulation in Order to Achieve Uniformity Vital to the National Interest. It has been stated that even where there is no Federal legislation, in cases where the National interest requires uniformity, Congress occupies the field under the Commerce Clause of the Constitution, Kelly », Washington, 302 U.S. 1, 58 S.Ct. 87 (1937). We have here Congressional enactments, and the regulations of two agencies vitally important to the air transportation industry. The need for uniformity in noise-safety regulation has been expressed many times over in this document and by commentators upon the several statutes involved. The question in applying the uniformity test is— — 63 Whether the State interest is outweighed by a National interest in the unhampered operation of interstate commerce. California v. Zook, 336 U.S. 725, 69 S.Ct. 841 (1949), at p. 728, 843. The danger of unharmonious systems that will be destructive of a Federal scheme are spelled out in Southern Pac. Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515 (1945), as well as Udall v. FPC, supra. In Southern Pacific, supra, National uniformity was required in the length of trains passing from State to State. Arizona wanted to, and did by statute, limit the length of trains passing through that State in the interest of safety. The Court, in examining that statute passed as a police power measure, considered the cost of complying, delays in deleting and then adding cars, needs for additional manpower, equipment, inconvenience to travellers, and delays in mail and freight, and concluded that the statute would disrupt a requisite National uniformity. We have much the same circumstances here. We have considered Southern Pacific above from the point of conflict, but it is as applicable from the point of view of required uniformity. Just as a local statute requiring trains to be shorter than they normally are would cause delays, so would the Burbank type of ordinance. The Burbank type of ordinance would disrupt cargo shipment, the mails, and would cause inconvenience. If curfew were permitted by anyone other than a centralized authority, safety would be disrupted. More equipment would be required. Pilots who can fly only so many hours without rest® would not be able to take out a diverted flight the next day after meeting with curfew. °14 CFR §121.471 et seq. 64 This would necessitate an expansion in staff on the part of air carriers. Maintenance schedules would be disrupted, and traffic would be severely hampered and disrupted, The same reasons for striking down the Arizona statute exist with respect to the Burbank Ordinance. When Congress decides uniformity is necessary, State laws must not be allowed to interfere, Hines y, Davidowitz, supra. It appears to NBAA, based upon its evaluation of the Federal Aviation Act of 1958, the 1968 amendment adding Section 611, and the 1972 Act amending Section 611, that the Federal Government indeed has required uniformity. d. The Burbank Ordinance Stands as an Obstacle to the Accomplishment and Execution of the Full Purposes and Objectives of Congress. The analysis submitted to this point clearly demon- strates that the Federal Government has expressly preempted the field of aircraft safety regulation. It has been established that the Burbank Ordinance, and those that will follow it, are disruptive of a fragile though comprehensive scheme of air traffic regulations that requires unformity and harmony in its maintenance. The noise legislation discussed and its history show at least an implied intention to preempt. Summing it up, this Court must conclude that the Burbank Ordinance stands as an obstacle to the full implementation of a carefully conceived Federal program. 65 POINT I THE ORDINANCE OF THE CITY OF BURBANK AND SIMILAR CURFEWS CURTAILING OPER- ATIONS AT AIRPORTS CONSTITUTE A REGULA- TION OF INTERSTATE COMMERCE THAT IS NEITHER INDIRECT NOR OF INCIDENTAL BURDEN THEREUPON. The regulation of airspace is clearly based upon Congressional authority to regulate interstate commerce under the Commerce Clause, U.S. Constitution, Art. I, Section 8, Clause 3. All aviation utilizing navigable airspace is therefore in interstate commerce.’ NBAA, however, will direct its attention not to the Sunday or pleasure fliers, but to the Nation’s air carriers and its own membership. A. The Air Transport Industry. In 1970, it was found by Congress that— The air transport industry provides a significant contribution to the Nation’s economy. Operating revenues of the scheduled carriers in 1968 amounted to over $7.75 billion. This was more than double to $3.76 billion generated on 5 years earlier. Total assets of the industry increased from $4.1 to $11 billion during the same period. In terms of employment, the scheduled airline industry directly provided over 300,000 jobs at the end of 1968, a two-thirds increase over the employment level of 1963. ‘Hearings on §S.3880, Subcommittee on Aviation, Senate Interstate and Foreign Commerce Committee 85th Cong. 2nd Sess., May and June 1958, p. 333. 66 The vital and growing role of air carriers in the — Nation’s Commerce is apparent from the 72.5 per — cent of intercity common carrier passenger miles in 1968 which were travelled by air. This compares. with only 39.3 percent some 10 years earlier. The predominance of air [travel] [sic] in overseas travel] has grown to the point wherein 1968 more than nine out of every 10 overseas travellers chose air.” ATA Vice President Clifton Von Kann testified at the trial below.* He indicated that in 1969, the Nation’s air carriers transported 150,000,000 passengers utilizing 2400 aircraft, about 1900 of which were jets. He further indicated that 4.7 billion cargo-ton miles were flown. Movement of passengers involves interstate commerce, in and of itself, Edwards v. California, 314 U.S. 160, 62 S.Ct. 164 (1941). B. Business Aviation. In NBAA’s statement on the “interest of the Amicus”, some facts were presented concerning the role of business aviation in air transportation. Those remarks are incorporated herein without repeating them. We would just add that business aviation is not only in interstate commerce because business aircraft utilize the airways. Business aviation is in interstate commerce because the aircraft of businesses are transporting officers and employees of these corporations which are heavily engaged in interstate commerce. 2H. Rep. No. 91-601, 91st Cong. 2nd Sess., Oct. 27, 1969, 2 U.S. Code Cong. and Ad. News 3047 (1970), at 3052. 3 Appelles App., 246 et seq. 4 Ibid. , at pp. 248, 249, 250. 67 When the Federal Aviation Act of 1958 was Originally considered, NBAA participated.S Mr. W.K. Lawton testified that at that time there were about 26,000 business aircraft, 2,500 of which were multi-engined aircraft. Business aviation users were ahead of the airlines in operating jet aircraft. The growth of business aviation has been tremendous, and has been recognized by FAA. C. Pacific-Southwest Airlines Is Operating In Interstate Commerce. Appellants have taken the position and made much ado about the fact that only corporate jet operations and one intrastate flight of PSA are affected by the Burbank Ordinance. We have pointed out that the corporate operations are involved in interstate commerce. It is further submitted that PSA is in interstate commerce. The CAB does not regulate PSA because its operations do not extend beyond the State of California. This means that PSA is not regulated by CAB. It does not mean that PSA is not in interstate commerce. PSA’s employees fall under the Railway Labor Act. The airline utilizes airways regulated by FAA. The airline is operated under Part 12] of the Federal Aviation Regulations. Its pilot employees are certified by FAA. Its aircraft will be regulated by Part 36, 14 CFR Parts 121, 61, 67 and 36. The mere fact that PSA operates intrastate is not dispositive of whether or not it is interstate commerce. Cloverleaf Butter Co. y. Patterson, 315 U.S. 148, 62 S.Ct. 49] (1942). *See statement of W. K. Lawton, Executive Director, NBAA, Hearings on S. 3880, Aviation Subcommittee, 85th Cong. 2nd Sess., May and June, 1958, at p. 301 ef seq. *Ibid., at pp. 302, 308 and 316. 68 D. Operations at the Hollywood-Burbank Airport, The Hollywood-Burbank airport handled 1,178,009 passengers in 1969.” PSA airport operates flights into and out of the airport, as well as Air West, Continental, United, and Western Airlines. These airlines are certificated by the CAB. Air West and Continental utilize the airport directly, as does PSA, while United and Western are designated to utilize the airport as an alternate to Los Angeles International Airport.® It was estimated the Hollywood Burbank airport was used as an alternate for 140 flights, or about 470 hours of such use.? ' Continental Airlines is certified by the Civil Aero- nautics Board to operate into and out of the airport, utilizing Boeing 727-200 aircraft.. Many of the flights conducted are interstate in nature,'° between Burbank and Portland, and Seattle.!! No testimony was presented by Air West, United or Western. The corporate jet operations at the airport were estimated at 275 each month, with 60 or so taking place at night.!? 7 Appellees App., p. 142. 8Tbid. , pp. 148-150. 9Ibid., pp. 150-151. 10 Tid, , pp. 205-206. !1 [hid, , p. 207. 12 Ibid. , p. 149. 69 E. Effect of Burbank Curfew. It was stated at the trial below that the Burbank curfew would immediately affect one flight of PSA which departed Hollywood-Burbank Airport for San Diego at 11:30 P.M. This flight averages 125 passengers out of Burbank, 80-85 originating there. Most of these passengers are military personnel.'? The curfew would require the incoming aircraft to land not at Hollywood-., Burbank, but at Los Angeles. Passengers incoming to Burbank would have to be bussed to Burbank. Those going to San Diego from Burbank would have to be bussed to Los Angeles.'* PSA would suffer in the area of maintenance as well, as the aircraft would be needed at San Diego for maintenance. The delay caused by PSA going to Los Angeles because of the Burbank situation would be destructive of this end. The total loss to PSA in complying with the curfew would. be in the area of $6,500 a trip."5 PSA would have to change 9 or 10 departure times to comply with the Burbank Ordi- nance.'® Continental would be restricted from operating an intended Southbound flight from Seattle at 8:00 P.M. Los Angeles Airport could not be used, as Continental’s CAB authorization does not authorize a Seattle-Los Angeles route.'7 None of Continental’s present flights would be affected. '3 [hid., pp. 75-75. '4 Ibid., p. 77. '5 Ibid., pp. 77-81. '6Ihid,, p. 96. '1 [bid,, Tr. 213. (ns ahd oy DAN See cane $4 a ral 70 F. Effect of Implementation of Similar Curfews at Other Airports, Nationwide. Mr. James L. Mitchell, testifying on behalf of Continental, estimated that a curfew similar to the Burbank curfew in Portland alone would cause the cancellation of its Northbound flights to Portland of Seattle out of Burbank or Ontario, California, after 7:09 P.M.'® A nationwide curfew between 11:00 P.M. and 7:00 A.M. would cause the cancellation of 48 of Continental’s departures.'? It would be disruptive of maintenance and result in considerable economic penalty.”° Mail and freight is mostly carried at night, departures occurring between 10:00 and 11:00 P.M." was estimated that such a curfew would prevent Continental from adequately serving its passengers, carrying mail in accordance with its postal contracts, and would be disruptive of its cdf~o service. Continental would have to cancel 15% of its aircraft miles flown or 30,000 miles a day, or 28 flights a day cancelled. 14.9% of the cargo flights wouls be lost.2? Net operating cost would increase 25% due to loss of night flying capacity, need for six new aircraft at a cost of 5-7 million dollars each and loss of revenues.” Clifton Von Kann, of ATA, estimated that the rate of return on equity investment for the airlines in 1969-1970 was less than 1%, and that nationwide curfew would be 18 Tid. , p. 215. 19 Ibid. , p. 217. : 20/bid., pp. 219-220,(230. 2! Ibid. , p. 218. 22 Tbid., pp. 231-235. 23 Ibid. , p. 235. 71 considered financially catastrophic by the airline industry.2* Congestion alone, without curfew, would cost the airlines about $1,500,000 in 1970.7 National curfew ordinance would result in the cancellation of an estimated 1009 flights, and would have a major effect on the carriage of cargo and mail, as half the mail would be delayed. Scheduling changes from the cancellations would involve massive disruption.” James T. Pyle, a former Administrator of CAA, and Deputy Administrator of FAA, testified that in 1966, his group known as the Aviation Development Council at LaGuardia Airport considered curfew. from 12:00 Mid-night to 7:00 A.M. in 1966. This sort of curfew was abandoned, for it would constitute an “‘untenable burden on air commerce.”’?® It was estimated, as a result of Mr. Pyles’ 1966 study on curfew, that 1107 weekly services would be cancelled, and 1370 odd operations would be discontinued, for a total elimination of 2474 operations each week.?? Of these operations 607 were all-cargo. G. The District Court’s Findings. The Court below found that curfew ordinances similar to the Burbank Ordinance “would promptly be adopted © by virtually all cities surrounding airports.” It was upon this assumption that the Court concluded that the curfew 24 Ibid. , pp. 251-252. 25 Ibid. , p. 253. 26 Ibid. , p. 266. 27 Ibid , pp. 259-266. 28 Ibid. , pp.283-284. 29 Ibid. , p. 286. 72 in question as an unconstitutional burden on interstate commerce. The 9th Circuit did not reach this question. ; The Court below has been criticized for io upon the adoption of curfew by other cities. The assumption, though, is reasonable. Curfew has pre. enacted by a judge in New Jersey,' a court in and recently, by another New Jersey Court.* A A ee asking for a curfew at White Plains, Westchester County Airport has been threatened by the Town of Greenwich, Connecticut.* The natural consequences of supporting the Burbank Ordinance is an appropriate consideration for the Court. Udall v. FPC, supra; Northern States Power Co. y, Minesota, supra. In Northern States, supra, Chief Justice Matthis opined that— Were the States allowed to impose stricter standards on the level of radioactive waste released they might conceivably be so over-protective in the area of health and safety as to unnecessarily stultify the industrial development and use of atomic energy for the production of electric power. Just as Justice Matthas engaged in carrying the matter before him to its logical conclusion, so did the Court below. The Court’s foresight should be the subject of commendation, not criticism. ' Township of Hanover v. Town of Morristown, 108 New Jersey Super. 461, 261 A.2d 692 (1969). 2 Williams v. Superior Court of Arizona, P.2d (1972). 3 Parachutes, Inc. v. Lakewood, __N.J. Super. __, __A2d ___, (1972), 12 Avi. Law Reports 17,623. | “News Week, June 15, 1972, at p. 82. The conditions under which the port author- ity permits these jets to operate at New York International Airport include a mandatory run- way use procedure that requires that jet air- craft use runway 25 or runway 22, for over- water takeoffs whenever wind and weather conditions permit. When it is not possible to take off over water, then and only then, takeoffs are permitted on runway 13-R, 31-L, or 7, but only on the condition that they be so planned and conducted that their noise level will not exceed 112 perceived noise decibels. In ad- 26 dition, takeoffs involving flight over the egm. munities are limited to the hours between 7am. and 10 p.m. Takeoffs at night are permitted only over water on runways 22 and 25, Representatives of the FAA testified regarding the actions and the authority of the agency in dealing with aircraft noise problems. The Committee was ad- vised that the agency had taken action to minimize problems arising from jet aircraft noise through the assignment of preferential noise abatement runway and the alteration of flight patterns and altitudes (id at 64-73, 124, 408). Though actions of this nature constituted ‘‘the most effective noise abatement pr- gram now available to us’’ (td. at 124), there was still an area of action for the States and their in- strumentalities. As FAA’s Deputy General Counsel explained (id. at 670, 699) : Generall; , the line of demarcation is that the Federal Government has contro] of the navi- gable airspace and regulates it. The community that owns the airport regulates it. It controls traffic on the ground.” The Federal Government cannot compel a city to have an airport if it doesn’t want one. If a city decides it wants to shut down its air port all night the city has the right to do that What the Federal Government does is regn- late the planes in the air. Theré is a provision in the Federal Aviation Act that says that the * Strictly speaking, FAA asserts jurisdiction for air trafic control purposes over traffic “operating in the air or on an air port surface, exclusive of loading ramps and parking areas” (14 C.F.R. 1.1), which is somewhat broader than described by the witness. _ 27 Ageney can enact air traffic rules for a number of purposes, one of which is for the protection of persons and property. on the gfound. It is that section that our noise abatement departure regulations are based on. When a plane is in the air, our controller will tell it what turns to make to avoid heavily built-up areas, but whether jets land at all or not at an airport or whether they take off at night or not is up to the municipality. [Emphasis supplied. ] es * * ~ _ Now, on the subject whether we could refuse to permit aircraft departures or arrivals at certain hours, yes, I suppose we could. We could refuse to permit them to use the navi- gable airspace to approach or depart at certain hours. But as I said this morning, we do not, and we do not think we should, because we _ think it is a local problem—whether it wants ‘to use its airport at night or not. | That line of demarcation was adhered to by the FAA throughout the hearings (id. at 376-377, 408-409, 426- 429, 670-671). At the conclusion of its hearings, the Committee reported the results of its investigation and study. H. Rep. No. 36, 88th Cong., Ist Sess. The Committee noted (id. at 2-3): (Noise from airplane engines is a more or less severe annoyance to millions of our people *# # @ * a 2 * | * *** The complaints included interruption of conversations, church services, and school classes. Night time flights were held to interfere 492-435—-72__33 28 with sleep. And an important source of cop. plaint stems from fear; fear that a low-fiyjp plane may be about to crash into one’s house The Committee reviewed the action taken by FAA to abate noise—extensive research into improved air. craft design, engine design, and noise suppression devices; establishment of preferential runways; alter. ation of flight patterns and altitudes; and earlier power reductions on climbout (td. at 12-16, 20-22). The Committee found what appeared to be a “¢op. sensus that whatever aircraft noise relief is obtain. able through air traffic rules changes * * * has been pretty much exhausted. While further changes her or there might bring some minor relief to a fey people, this possibility can no longer be viewed asa major aircraft noise abatement tool’’ (id. at 22). It was the Committee’s view that State and local governments, either in the exercise of their police power or in their proprietary capacity as owners and operators of airports, possessed noise abatement pov- ers which could be exercised through such devices as antinoise ordinances, zoning of areas surrounding air. ports, and imposition of restrictions as to the use of the airport facilities (id. at 22-23). The Committe specifically found (td. at 27) : 7.01: The FAA has authority to promulgate air traffic rules and regulations governing the operation of aircraft in flight so as to minimix noise and other hazards to persons and prop erty on the ground. 7.02: Interstate and international air com merce is considered to be in the sole domain of the Federal Government. The Federal Goverr- é 29 ment, however, has not exercised its authority in conjunction with any enactment which would attempt to establish an aircraft noise criterion. 7.03: Until Federal action is taken, the local governmental authorities must be deemed to possess the police power necessary to protect their citizens and property from the unreason- able invasion of aircraft noise. The wisdom of exercising such power or the manner of the exercise is a problem to be resolved on the local governmental level. ' 7.04: There is no evidence of any effort by any State or municipality to exercise local gov- ernmental authority to control the impact of aircraft noise upon the community. 7.05: Airports in the United States, as a gen- eral rule, are operated by a local governmental authority, either a municipality, a county, or some independent unit. These airport operators are closer, both geographically and politically, to the problem of the conflict of interests be- tween those citizens who have been adversely affected by the aircraft noise and the needs of the community for air commerce. Some airport operators have exercised the proprietary right to restrict in a reasonable manner, the use of any runway by limiting either the hours during which it may be used or the types of civil trans- port aircraft that may use it. 7.06: The Federal Aviation Agency has and has exercised the authority to establish a pref- erential runway system for any airport. 7.07: The local governmental authorities ap- pear to be reluctant to exercise their govern- mental prerogatives other than police power, to partially relieve its citizens who are anguished by aircraft noise. cluding research into noise suppression engine , consideration by the FAA of conditioning the grant. federal airport development funds on the local airpox owner’s procurement of sufficient avigational ease ments,“FAA development of a valid measurement of aircraft noise annoyance.. With respect to non-federal action, the Committee recommended the exercise of state and local police powers to alleviate the impact of air craft noise from airports in the community and, “wher it is essential to the peace of an adjacent community,” the exploration by airport operators, in consultation ; with FAA, of possible restrictions “on the use of mm ways with regard to either hours of the day or one ; aircraft’’ (id. at 27-28). The Committee’s findings and conclusions are wholly incompatible with the notion that the 1958 Act (or prior federal aviation legislation) had been intended to foreclose State and local authorities from noim abatement measures through control of airports under their jurisdiction. 4. The 1968 noise abatement amendment In 1968, Congress enacted Section 611 of the Fed- eral Aviation Act, 49 U.S.C. 1431, the first provision of the Act expressly addressed to noise problems This legislation directed the Administrator of FAA to develop standards for the measurement of aircraft noise and sonic boom and, to “prescribe and amend such rules and regulations as he may find necessary for the control and abatement” thereof. While this 31 legislation strengthened the mandate and authority of federal regulators to move against aircraft noise _ problems, a review of the underlying legislative his- tory manifests a congressional intent to leave pre- existing State and local powers unimpaired unless they are exercised in a manner that conflicts with the affirmative exercise of federal power under the provision. The burgeoning growth of aviation and the wide- spread introduction of jet aircraft into commercial and corporate fleets during the years since the pass- age of the 1958 Act had greatly exacerbated the prob- lem of aircraft noise. S. Rep. No. 1353, 90th Cong., 2d Sess., pp. 1-2. At the same time, technological advances appeared to offer opportunities to make air- craft significantly less noisy. Hearings before the Aviation Subcommittee of the Senate Committee on Commerce on S. 707 and H.R. 3400, Aircraft Noise Abatement Regulation, 90th Cong., 2d Sess., pp. 6-8, 66-68, 82-86. This combination of Zircumstances led to the adoption of Section 611, the thrust of which was directed to accomplishing the full application of noise reduction technology-to aircraft design. S. Rep. No. 1353, supra, p. 2. When the aircraft noise legislation was being studied by the House Committee, the Air Transport Association submitted a proposed alternative to the bill as introduced. Among the changes suggested was one that would make the promulgation of noise stand- ards by the FAA Administrator mandatory. The stated purpose of this suggestion was “to strengthen the role of the Federal Gove [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0140%3A14. Public record. Not legal advice.