Opinion of the Justices

• Decision Date: 25 June 1971
• Citation: 271 N.E.2d 354,359 Mass. 778
• Parties: , 2 ERC 1734 OPINION OF THE JUSTICES to the House of Representatives.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 354

271 N.E.2d 354

359 Mass. 778, 2 ERC 1734

OPINION OF THE JUSTICES to the House of Representatives.

Supreme Judicial Court of Massachusetts.

June 25, 1971.

On June 25, 1971, the Justices submitted the following answer to a question propounded to them by the House of Representatives.

To the Honorable the House of Representatives of the Commonwealth of Massachusetts: Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit this answer to the question in an order adopted by the House of Representatives on April 20, 1971, and transmitted to us on April 27. The order recites the pendency before the General Court of a bill printed As Senate No. 1161, as amended by the House, entitled, 'An Act prohibiting super sonic transport (SST) planes from landing or taking off in the commonwealth.' The bill reads, 'Notwithstanding the provision of any law, unless there is an emergency, no commercial super sonic transport plane which is not capable of limiting its noise level to one hundred and eight decibels or less while landing, on the ground, or taking off will be permitted to land or to take off in the commonwealth.'

The order sets forth, among others, the following recitals: (a) that the SST will not only be engaged in interstate commerce but will also be engaged in international flights pursuant to the various treaties relative to air travel now in existence between the United States and many foreign nations; (b) that art. 1, § 8, of the Constitution of the United States provides in part that Congress shall regulate commerce with foreign nations and among the several The question is:

States; and (c) that grave doubt exists as to the constitutionality of the bill if enacted into law.

'It is constitutionally competent for the General Court to enact said Senate, No. 1161, amended, which in effect prohibits the landing of any commercial super sonic transport aircraft at any airport within the commonwealth notwithstanding that the operation of such aircraft in interstate and international commerce is regulated by the Congress?'

We invited briefs from interested persons to be filed by May 18. In response, careful briefs or other helpful memoranda were filed by or in behalf of the following: The Attorney General, the Counsel to the House of Representatives, the Massachusetts Port Authority, the Department of Transportation of the United States and the Federal Aviation Administration (FAA), the Civil Aeronautics Board (CAB), the Conservation Law Foundation of New England, Inc., Boston Lawyers for a Better Environment, the Massachusetts Forest and Park Association, the Air Transport Association of America, and the Societe Nationale Industrielle Aerospatiale.

Where, as here, the State proposes legislation in an area involving interstate and foreign commerce in which Congress already has enacted comprehensive statutes, it becomes necessary to inquire whether the State action is precluded because Congress has pree mpted the field. Hines v. Davidowitz, 312 U.S. 52, 66--67, 61 S.Ct. 399, 85 L.Ed. 581; Campbell v. Hussey, 368 U.S. 297, 82 S.Ct. 327, 7 L.Ed.2d 299. In determining whether there has been Federal preemption the purpose of Congress in enacting the applicable statutes must be ascertained. Rice v. Santa Fe Elev. Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447. See Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 10 L.Ed.2d 248. Federal preemption preventing the proposed State action may be indicated in various ways: (a) The Federal scheme may be so pervasive as to show that Congress left no room for the States to supplement it. (b). The Federal interest in the field may be so dominant that the Federal statutory system will prevent enforcement of State laws on the subject. (c) State policy may conflict with Federal objectives. See Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640. As this court has stated, "The intention of Congress to exclude States from exerting their police power must be clearly manifested." Commonwealth v. Haseotes, 356 Mass. 230, 236, 249 N.E.2d 639, quoting Napier v. Atlantic Coast Line R.R., 272 U.S. 605, 611, 47 S.Ct. 207, 71 L.Ed. 432.

The Federal government has asserted a broad authority to control and regulate the use of navigable airspace and aircraft operations. The principal statute in the present comprehensive scheme of Federal control is the Federal Aviation Act of 1958, 49 U.S.C. §§ 1301--1542 (1964), as amended. Under this act, the United States is declared 'to possess and exercise complete and exclusive national sovereignty in the airspace of the United States.' 49 U.S.C. § 1508(a) (1964), and §§ 1655(c), 1657(f) (Supp. V, 1965--1969). Each citizen of the United States is granted the 'right of freedom of transit through the navigable airspace of the United States.' See 49 U.S.C. § 1304 (1964), and §§ 1655(c), 1657(f) (Supp. V, 1965--1969). 'Navigable airspace' is defined as all airspace 'above the minimum altitudes of flight prescribed by regulations issued under this chapter, and shall include airspace needed to insure safety in take-off and landing of aircraft.' See 49 U.S.C. § 1301(24) (1964), and §§ 1655(c), 1657(f) (Supp. V, 1965--1969). The act established the Federal Aviation Agency, headed by an administrator (later transferred to the Secretary of Transportation, 49 U.S.C. §§ 1655(c), 1657(f) (Supp. V, 1965--1969)) Federal legislative action has been taken directly in the field which Senate Bill No. 1161, amended, purports to regulate. This has been done by the 1968 amendment to the Federal Aviation Act of 1958. See 49 U.S.C. § 1431 (Supp. V, 1965--1969). The amendment directs the FAA administrator to prescribe standards for the measurement of aircraft noise and sonic boom and rules and regulations for the control and abatement of aircraft noise and sonic boom. Pub.Law (90th Cong.) 411, § 1, 82 Stat. 395. 49 U.S.C. § 1431 (Supp. V, 1965--1969). The legislative history of the 1968 amendment contains, however, some indication that Congress did not intend completely to exclude all State action in the field of aircraft noise control. Senate Rep.No. 1353, 90th Cong., 2d Sess., 2 U.S.Code Cong. & Adm.News, 1968, p. 2694, states in part, '(T)he 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.'

and conferred upon that agency broad powers to regulate air commerce in the public interest. See 49 U.S.C. §§ 1303, 1341(a), 1348 (1964), [359 Mass. 781] and §§ 1655(c), 1657(f) (Supp. V, 1965--1969). The act confers upon the administrator vast powers over all aspects of aircraft navigation. These powers include, among other things, authority for the development of plans and policy with respect to the use of navigable airspace and allotment of the use of such airspace. See 49 U.S.C. § 1348(a) (1964), and § 1655(c) (Supp. V, 1965--1969). The administrator also has general authority to issue such orders, rules and regulations as he deems necessary to carry out the provisions of the act. See 49 U.S.C. § 1354 (1964), and §§ 1655(c), 1657(f) (Supp. V, 1965--1969).

In issuing regulations pursuant to the 1968 amendment, the FAA has acted consistently with the legislative history in leaving some authority to airport proprietors in the regulation of noise. The amendment to the regulations is prefaced by the following statement: 'Relation to responsibility of airport proprietors. Compliance with Part 36 is not to be construed as a Federal determination that the aircraft is 'acceptable,' from a noise standpoint, in particular airport environments. Responsibility for determining the permissible noise levels for aircraft using an airport remains with the proprietor of that airport. The noise limits specified in Part 36 are the technologically practicable and economically reasonable limits of aircraft noise reduction technology at the time of type certification and are not intended to substitute federally determined noise levels for those more restrictive limits determined to be necessary by individual airport proprietors in response to the locally determined desire for quite and the locally determined need for the benefits of air commerce. This limitation on the scope of Part 36 is required for consistency with the responsibilities placed upon the airport proprietor by the U.S. Supreme Court in Griggs v. Allegheny County, 369 U.S. 84 (82 S.Ct. 531, 7 L.Ed.2d 585) * * *. Consistent with this limited scope, this amendment specifies that the Federal Aviation Administration makes no determination, under Part 36, on the acceptablility of the prescribed noise levels in any specific airport environment (see §§ 36.5 and 36.1581(a)).' See 34 Fed.Reg. 18355. The regulations themselves state, 'No determination is made, under this part, that these noise levels are or should be acceptable or unacceptable for operation at, into, or out of, any airport.' 14 C.F.R. § 36.5. Also the regulations apply only to certain classes of subsonic aircraft. 14 C.F.R. § 36.1.

American Airlines, Inc. v. Hempstead, 272 F.Supp. 226 (E.D.N.Y.), affd. 398 F.2d 369 (2d Cir.), cert. den. sub nom. Hempstead The Hempstead case, of course, was decided prior to the 1968 amendment to the Federal Aviation Act and did not involve an airport proprietor. Nevertheless, the principles expressed in that case and the comprehensive character of the Federal air statutes and regulations, existing even prior to 1968, lead us to conclude that the proposed Massachusetts legislation would intrude upon an area preempted by the Congress. Assuming without deciding that there has not been...