City and County of San Francisco v. F.A.A.
| Decision Date | 21 August 1991 |
| Docket Number | 89-70057,89-70482,89-70053,Nos. 89-70055,89-70483 and 89-70500,s. 89-70055 |
| Parties | CITY AND COUNTY OF SAN FRANCISCO; the Airports Commission of the City and County of San Francisco, Petitioners, v. FEDERAL AVIATION ADMINISTRATION; Department of Transportation, National Transportation Safety Board, Respondents. (Three Cases) COUNTY OF SAN MATEO, Petitioner, v. FEDERAL AVIATION ADMINISTRATION; Department of Transportation, National Transportation Safety Board, Respondents. (Two Cases) CITY AND COUNTY OF SAN FRANCISCO; the Airports Commission of the City and County of San Francisco, Petitioners, v. FEDERAL AVIATION ADMINISTRATION; Department of Transportation, National Transportation Safety Board, Respondents, Burlington Air Express ("Burlington"), Respondent-Intervenor. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Steven S. Rosenthal, Morrison & Foerster, Washington, D.C., Porter Goltz, Deputy County Counsel, County of San Mateo, Redwood City, Cal., for petitioners.
John A. Bryson, U.S. Dept. of Justice, Washington, D.C., for respondents.
John W. Simpson, Kelley Drye & Warren, Washington, D.C., for intervenor.
Kenneth R. Williams, Deputy Atty. Gen., and Larry A. Thelen, Dept. of Transp., Sacramento, Cal., for amicus.
Petition to Review a Decision of the Federal Aviation Administration.
Before BROWNING, PREGERSON and TROTT, Circuit Judges.
The City and County of San Francisco petitions for review of a decision of the Federal Aviation Administration (FAA) denying San Francisco's applications for airport improvement grants from the Airport and Airway Trust Fund. We affirm in part and reverse in part.
The Airport and Airway Trust Fund is made up of amounts equivalent to taxes on aviation fuel and air transportation received by the Treasury. See 26 U.S.C. § 9502 (1988). Money from the Trust Fund is allocated, pursuant to The Airport and Airway Improvement Act of 1982, 49 U.S.C.App. §§ 2201-27 (1988), to finance the operation and improvement of major airports. Potential recipients include "primary airports" like San Francisco International Airport. See 49 U.S.C.App. §§ 2202(a)(12), 2205(a)(2)(B).
To receive funds from the Trust Fund, an airport proprietor must submit a grant application to the Secretary of Transportation assuring the "airport to which the project relates will be available for public use on fair and reasonable terms and without unjust discrimination...." 49 U.S.C.App. § 2210(a)(1). San Francisco submitted grant applications for fiscal years 1986 through 1989. The FAA rejected the applications on the ground San Francisco had violated the assurance of nondiscrimination by unjustly discriminating against a retrofitted Boeing 707 airplane (Q707) through a Noise Abatement Resolution adopted by San Francisco's Airports Commission in 1978 ("1978 Regulation").
The FAA establishes standards for aircraft noise levels through a certification system. See 49 U.S.C.App. §§ 1423, 1431. Aircraft are certified as Stage 1 (not allowed to operate in the U.S. after 1985), Stage 2, and Stage 3 (most quiet) based on the decibels they emit. See 14 C.F.R. Part 36 (1991). Stage 1 aircraft may be retrofitted to meet Stage 2 standards; the Q707 involved in this case is such a retrofitted Stage 1 aircraft.
San Francisco's 1978 Regulation prohibited aircraft from continuing operations at the Airport after January 1, 1985 unless certified as Stage 2 (or Stage 3) or retrofitted to meet Stage 2 certification requirements. Aircraft like the Q707 that had been retrofitted to meet Stage 2 certification requirements could begin operations at the Airport after January 1, 1985, only if the FAA had certified at least one plane of the same type as meeting Stage 2 requirements before January 1, 1985. Because FAA regulations required Stage 3 certification for new aircraft after November 1975, the practical effect of San Francisco's regulation was that only Stage 3 aircraft and "grandfathered" Stage 2 aircraft were allowed to operate at the Airport after January 1, 1985.
Burlington Air Express, an all-cargo carrier, applied to the San Francisco Airports Commission in August 1985 for a waiver of the 1978 Regulation so it could operate several retrofitted Q707s at the Airport. These planes received Stage 2 certification from the FAA in March 1985, three months after San Francisco's cutoff date of January 1, 1985. Burlington's waiver application was denied. Since the denial, Burlington has operated its Q707s from Oakland Airport across San Francisco Bay.
While Burlington's waiver request was pending before the Commission, Burlington filed a complaint with the FAA. The FAA's Chief Counsel issued a Notice of Proposed Cease and Desist Order, alleging exclusion of Burlington's Q707 aircraft was unjustly discriminatory in violation of section 2210(a)(1) and San Francisco's grant assurance. 1 The notice suspended airport improvement grants to San Francisco.
After a hearing, a Department of Transportation Administrative Law Judge held San Francisco had breached its assurance that it would operate the Airport without unjust discrimination. The Administrator of the FAA affirmed, holding the 1978 Regulation unjustly discriminatory because it allowed planes that were equally noisy or noisier than Q707s to operate at the Airport and to increase in number without limit while excluding the Q707, based on a characteristic--date of type-certification as meeting Stage 2 requirements--that had no relationship to noise. The FAA denied San Francisco's grant applications and withheld approval of new grants while the regulation remained in effect. San Francisco petitioned for review in this court.
We reject at the outset San Francisco's contention we should decide de novo as a matter of contract interpretation whether San Francisco violated its grant assurance. This contention misunderstands the nature of federal regulation of airport noise. It also misunderstands the role of the Airport and Airway Improvement Act, which denies federal funds to airport proprietors who exceed their regulatory authority by denying use of an airport on an unjustly discriminatory basis.
The federal government regulates aircraft and airspace pervasively, preempting regulation of aircraft noise by state or local governments. City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 633, 93 S.Ct. 1854, 1859, 36 L.Ed.2d 547 (1973). However, Congress reserved a limited role for local airport proprietors in regulating noise levels at their airports. See Santa Monica Airport Ass'n v. City of Santa Monica, 659 F.2d 100, 104 (9th Cir.1981) (); see also City of Burbank, 411 U.S. at 635 n. 14, 93 S.Ct. at 1861 n. 14; San Diego Unified Port Dist. v. Gianturco, 651 F.2d 1306, 1316 (9th Cir.1981).
Congress made it clear, however, that the power delegated to airport proprietors to adopt noise control regulations is limited to regulations that are not unjustly discriminatory. When the Federal Aviation Act was amended in 1968 to extend the FAA's authority to regulate aircraft noise, the Senate Report accompanying the bill quoted with approval a letter from the Secretary of Transportation. The letter set forth the existing limited authority of airport proprietors to adopt nondiscriminatory noise regulations and stated that the 1968 amendment would not alter that limited authority:
the proposed legislation will not affect the rights of a State or local public agency, as the proprietor of an airport, from issuing regulations or establishing requirements as to the permissible level of noise which can be created by aircraft using the airport. Airport owners acting as proprietors can presently deny the use of their airports to aircraft on the basis of noise considerations so long as such exclusion is nondiscriminatory.
S.Rep. No. 1353, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.Code Cong. & Admin.News 2688, 2694.
Courts have recognized both the delegation of regulatory power to airport proprietors and the limitation of this power to the issuance of nondiscriminatory regulations. See City of Burbank, 411 U.S. at 635 n. 14, 93 S.Ct. at 1861 n. 14 (); British Airways v. Port Auth. of New York (Concorde I), 558 F.2d 75, 84 (2d Cir.1977) (); British Airways v. Port Auth. of New York, 564 F.2d 1002, 1011 (2d Cir.1977) (Concorde II ) ().
Although Congress has revisited the issue of how best to control airport noise on a number of occasions, it has declined to alter the delegation to airport proprietors of the limited noise control authority described in the Secretary's 1968 letter. See S.Rep. No. 1160, 92d Cong., 2d Sess. (1972), reprinted in 1972 U.S.Code Cong. & Admin.News 4655, 4663 (accompanying Noise Control Act of 1972) ("[t]his does not address responsibilities or powers of airport operators ..."); S.Rep. No. 52, 96th Cong., 2d Sess. 13 (1980), reprinted in 1980 U.S.Code Cong. & Admin.News 89, 101 (accompanying Aviation Safety and Noise Abatement Act of 1979) ("[N]othing in the bill is intended to alter the respective legal responsibilities of the Federal Government and local airport proprietors for the control of aviation noise."). 2
The conditions Congress imposed on the grant to local...
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