City of Burbank v. Lockheed Air Terminal Inc 8212 1637

Decision Date14 May 1973
Docket NumberNo. 71,71
Citation36 L.Ed.2d 547,93 S.Ct. 1854,411 U.S. 624
PartiesCITY OF BURBANK et al., Appellants, v. LOCKHEED AIR TERMINAL INC. et al. —1637
CourtU.S. Supreme Court

Richard L. Sieg, Jr., Beverly Hills, Cal., for appellants.

Nicholas C. Yost, Los Angeles, Cal., for the State of California, as amicus curiae, by special leave of Court.

Daniel M. Friedman, Washington, D.C., for the U.S., as amicus curiae, by special leave of Court.

Warren M. Christopher, Los Angeles, Cal., for appellees.

Mr. Justice DOUGLAS delivered the opinion of the Court.

The Court in Cooley v. Board of Wardens, 12 How. 299, 13 L.Ed. 996, first stated the rule of pre-emption which is the critical issue in the present case. Speaking through Mr. Justice Curtis, it said:

'Now the power to regulate commerce, embraces a vast field, containing not only many, but exceedingly various subjects, quite unlike in their nature; some imperatively demanding a single uniform rule, operating equally on the commerce of the United States in every port; and some, like the subject now in question, as imperatively demanding that diversity, which alone can meet the local necessities of navigation.

'. . . Whatever subjects of this power are in their nature national, or admit only of one uniform system, or plan or regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress.' Id., at 319.

This suit brought by appellees asked for an injunction against the enforcement of an ordinance adopted by the City Council of Burbank, California, which made it unlawful for a so-called pure jet aircraft to take off from the Hollywood-Burbank Airport between 11 p.m. of one day and 7 a.m. the next day, and making it unlawful for the operator of that airport to allow any such air- craft to take off from that airport during such periods.1 The only regularly scheduled flight affected by the ordinance was an intrastate flight of Pacific Southwest Airlines originating in Oakland, California, and departing from Hollywood-Burbank Airport for San Diego every Sunday night at 11:30.

The District Court found the ordinance to be unconstitutional on both Supremacy Clause and Commerce Clause grounds. 318 F.Supp. 914. The Court of Appeals affirmed on the grounds of the Supremacy Clause both as respects pre-emption and as respects conflict.2 457 F.2d 667. The case is here on appeal. 28 U.S.C. § 1254(2). We noted probable jurisdiction. 409 U.S. 840, 93 S.Ct. 59, 34 L.Ed.2d 78. We affirm the Court of Appeals.

The Federal Aviation Act of 1958, 72 Stat. 731, 49 U.S.C. § 1301 et seq., as amended by the Noise Control Act of 1972, 86 Stat. 1234, and the regulations under it, 14 CFR pts. 71, 73, 75, 77, 91, 93, 95, 97, are central to the question of pre-emption.

Section 1108(a) of the Federal Aviation Act, 49 U.S.C. § 1508(a), provides in part, 'The United States of America is declared to possess and exercise complete and exclusive national sovereignty in the airspace of the United States . . .' By §§ 307(a), (c) of the Act, 49 U.S.C. §§ 1348(a), (c), the Administrator of the Federal Aviation Administration (FAA) has been given broad authority to regulate the use of the navigable airspace, 'in order to insure the safety of aircraft and the efficient utilization of such airspace . . .' and 'for the protection of persons and property on the ground . . ..'3

The Solicitor General, though arguing against pre-emption, concedes that as respects 'airspace management' there is pre-emption. That, however, is a fatal concession, for as the District Court found: 'The imposition of curfew ordinances on a nationwide basis would result in a bunching of flights in those hours immediately preceding the curfew. This bunching of flights during these hours would have the twofold effect of increasing an already serious congestion problem and actually increasing, rather than relieving, the noise problem by increasing flights in the period of greatest annoyance to surrounding communities. Such a result is totally inconsistent with the objectives of the federal statutory and regulatory scheme.' It also found '(t)he imposition of curfew ordinances on a nationwide basis would cause a serious loss of efficiency in the use of the navigable airspace.'

Curfews such as Burbank has imposed would, according to the testimony at the trial and the District Court's findings, increase congestion, cause a loss of efficiency, and aggravate the noise problem. FAA has occasionally enforced curfews. See Virginians for Dulles v. Volpe, D.C., 344 F.Supp. 573. But the record shows that FAA has consistently opposed curfews, unless managed by it, in the interests of its management of the 'navigable airspace.'

As stated by Judge Dooling in American Airlines v. Hempstead, D.C., 272 F.Supp. 226, 230, aff'd, 2 Cir., 398 F.2d 369:

'The aircraft and its noise are indivisible; the noise of the aircraft extends outward from it with the same inseparability as its wings and tail assembly; to exclude the aircraft noise from the Town is to exclude the aircraft; to set a ground level decibel limit for the aircraft is directly to exclude it from the lower air that it cannot use without exceeding the decibel limit.'

The Noise Control Act of 1972, which was approved October 27, 1972, provides that the Administrator 'after consultation with appropriate Federal, State, and local agencies and interested persons' shall conduct a study of various facets of the aircraft noise problems and report to the Congress within nine months, 4 i.e., by July 1973. The 1972 Act, by amending § 611 of the Federal Aviation Act,5 also involves the Environmental Protection Agency (EPA) in the comprehensive scheme of federal control of the aircraft noise problem. Under the amended § 611(b)(1), 86 Stat. 1239, 49 U.S.C. § 1431(b)(1) (1970 ed., Supp. II) FAA, after consulting with EPA, shall provide 'for the control and abatement of aircraft noise and sonic boom, including the application of such standards and regulations in the issuance, amendment, modification, suspension, or revocation of any certificate authorized by this title.'6 Section 611 (b)(2), as amended, 86 Stat. 1239, 49 U.S.C. § 1431(b)(2) (1970 ed., Supp. II), provides that future certificates for aircraft operations shall not issue unless the new aircraft noise requirements are met.7 Section 611(c)(1), as amended, provides that not later than July 1973 EPA shall submit to FAA proposed regulations to provide such 'control and abatement of aircraft noise and sonic boom' as EPA determines is 'necessary to protect the public health and welfare.' FAA is directed within 30 days to publish the proposed regulations in a notice of proposed rulemaking. Within 60 days after that publication, FAA is directed to commence a public hearing on the proposed rules. Section 611(c)(1). That subsection goes on to provide that within 'a reasonable time after the conclusion of such hearing and after consultation with EPA,' FAA is directed either to prescribe the regulations substantially as submitted by EPA, or prescribe them in modified form, or publish in the Federal Register a notice that it is not prescribing any regulation in response to EPA's submission together with its reasons therefor.

Section 611(c)(2), as amended, also provides that if EPA believes that FAA's action with respect to a regulation proposed by EPA 'does not protect the public health and welfare from aircraft noise or sonic boom,' EPA shall consult with FAA and may request FAA to review and report to EPA on the advisability of prescribing the regulation originally proposed by EPA. That request shall be published in the Federal Register; FAA shall complete the review requested and report to EPA in the time specified together with a detailed statement of FAA's findings and the reasons for its conclusion and shall identify any impact statement filed under § 102(2)(C) of the National Environmental Policy Act of 1969,8 83 Stat. 853, 42 U.S.C. § 4332(2)(C) with respect to FAA's action. FAA's action, if adverse to EPA's proposal, shall be published in the Federal Register.

Congress did not leave FAA to act at large but provided in § 611(d), as amended, particularized standards:

'In prescribing and amending standards and regulations under this section, the FAA shall—

'(1) consider relevant available data relating to aircraft noise and sonic boom, including the results of research, development, testing, and evaluation activities conducted pursuant to this Act and the Department of Transportation Act;

'(2) consult with such Federal, State, and interstate agencies as he deems appropriate;

'(3) consider whether any proposed standard or regulation is consistent with the highest degree of safety in air commerce or air transportation in the public interest;

'(4) consider whether any proposed standard or regulation is economically type of aircraft, aircraft engine, apreasonable, technologically practicable, and appropriate for the particular pliance, or certificate to which it will apply; and

'(5) consider the extent to which such standard or regulation will contribute to carrying out the purposes of this section.'

The original complaint was filed on May 14, 1970; the District Court entered its judgment November 30, 1970; and the Court of Appeals announced its judgment and opinion March 22, 1972—all before the Noise Control Act of 1972 was approved by the President on October 27, 1972. That Act reaffirms and reinforces the conclusion that FAA, now in conjunction with EPA, has full control over aircraft noise, pre-empting state and local control.

There is, to be sure, no express provision of pre-emption in the 1972 Act. That, however, is not decisive. As we stated in Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447:

'Congress legislated here in a field which the States have traditionally occupied. . . . So we start with the assumption that the historic police powers of the States...

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