City of Burbank v. Lockheed Air Terminal

MR. JUSTICE REHNQUIST, with whom MR. JUSTICE STEWART, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL join, dissenting.

The Court concludes that congressional legislation dealing with aircraft noise has so “pervaded” that field that Congress has impliedly pre-empted it, and therefore the ordinance of the city of Burbank here challenged is  invalid under the Supremacy Clause of the Constitution. The Court says that the 1972 “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.” Ante, at 633. Yet the House and Senate committee reports explicitly state that the 1972 Act to which the Court refers was not intended to alter the balance between state and federal regulation which had been struck by earlier congressional legislation in this area. The House Report, H.R. Rep. No. 92-842, in discussing the general pre-emptive effect of the entire bill, stated:

“The authority of State and local government to regulate use, operation, or movement of products is not affected at all by the bill. (The preemption provision discussed in this paragraph does not apply to aircraft. See discussion of aircraft noise below.)” Id., at 8.

The report went on to state specifically:

“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 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.” Id., at 10.

The report of the Senate Public Works Committee, S. Rep. No. 92-1160, expressed the identical intent with respect to pre-emption:

“States and local governments are preempted from establishing or enforcing noise emission standards for aircraft [see American Airlines v. Hempstead, 272 F. Supp. 226 (EDNY 1967)], unless such standards are identical to standards prescribed under this bill. This does not address responsibilities or powers  of airport operators, and 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 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.” Id., at 10-11.

In the light of these specific congressional disclaimers of pre-emption in the 1972 Act, reference must necessarily be had to earlier congressional legislation on the subject. It was on the basis of these earlier enactments that the Court of Appeals concluded that Congress had pre-empted the field from state or local regulation of the type that the city of Burbank enacted.

The Burbank ordinance prohibited jet takeoffs from the Hollywood-Burbank Airport during the late evening and early morning hours. Its purpose was to afford local residents at least partial relief, during normal sleeping hours, from the noise associated with jet airplanes. The ordinance in no way dealt with flights over the city, cf. American Airlines v. Hempstead, 272 F. Supp. 226 (EDNY 1967), aff’d, 398 F.2d 369 (CA2 1968), cert. denied, 393 U.S. 1017 (1969), nor did it categorically prohibit all jet takeoffs during those hours.

Appellees do not contend that the noise produced by jet engines could not reasonably be deemed to affect  adversely the health and welfare of persons constantly exposed to it; control of noise, sufficiently loud to be classified as a public nuisance at common law, would be a type of regulation well within the traditional scope of the police power possessed by States and local governing bodies. Because noise regulation has traditionally been an area of local, not national, concern, in determining whether congressional legislation has, by implication, foreclosed remedial local enactments “we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). This assumption derives from our basic constitutional division of legislative competence between the States and Congress; from “due regard for the presuppositions of our embracing federal system, including the principle of diffusion of power not as a matter of doctrinaire localism but as a promoter of democracy. . . .” San Diego Building Trades Council v. Garmon, 359 U.S. 236, 243 (1959) (emphasis added). Unless the requisite pre-emptive intent is abundantly clear, we should hesitate to invalidate state and local legislation for the added reason that “the state is powerless to remove the ill effects of our decision, while the national government, which has the ultimate power, remains free to remove the burden.” Penn Dairies, Inc. v. Milk Control Comm’n, 318 U.S. 261, 275 (1943).

Since Congress’ intent in enacting the 1972 Act was clearly to retain the status quo between the federal regulation and local regulation, a holding of implied pre-emption of the field depends upon whether two earlier congressional enactments, the Federal Aviation Act of 1958, 72 Stat. 731, 49 U.S.C. § 1301 et seq., and the 1968 noise abatement amendment to that Act,  49 U.S.C. § 1431, manifested the clear intent to preclude local regulations, that our prior decisions require.

The 1958 Act was intended to consolidate in one agency in the Executive Branch the control over aviation that had previously been diffused within that branch. The paramount substantive concerns of Congress were to regulate federally all aspects of air safety, see, e. g., 49 U.S.C. § 1422 and, once aircraft were in “flight,” airspace management, see, e. g., 49 U.S.C. § 1348 (a). See S. Rep. No. 1811, 85th Cong., 2d Sess., 5-6, 13-15. While the Act might be broad enough to permit the Administrator to promulgate takeoff and landing rules to avoid excessive noise at certain hours of the day, see 49 U.S.C. § 1348 (c), Congress was not concerned with the problem of noise created by aircraft and did not intend to pre-empt its regulation. Furthermore, while Congress clearly intended to pre-empt the States from regulating aircraft in flight, the author of the bill, Senator Monroney, specifically stated that FAA would not have control “over the ground space” of airports.

The development and increasing use of civilian jet aircraft resulted in congressional concern over the noise associated with those aircraft. Hearings were held over a period of several years, resulting in a report but no legislation. The report of the House Committee on Interstate and Foreign Commerce, H.R. Rep. No. 36, 88th Cong., 1st Sess., shows clearly that the 1958 Act was thought by at least some in Congress neither to pre-empt local legislative action to alleviate the growing noise problem, nor to prohibit local curfews:

“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 unreasonable 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.

. . . . .

“Airports in the United States, as a general rule, are operated by a local governmental authority, either a municipality, a country, or some independent unit. These airport operators are closer, both geographically and politically, to the problem of the conflict of interests between 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 transport aircraft that may use it.” H.R. Rep. No. 36, 88th Cong., 1st Sess., 27.

Several years after the conclusion of these hearings, Congress enacted the 1968 noise abatement amendment, 82 Stat. 395, which added § 611 to the 1958 Act, 49 U.S.C. § 1431, and which was the first congressional legislation dealing with the problem of aircraft noise. On its face, § 611 as added by the 1968 amendment neither pre-empted the general field of regulation of  aircraft noise nor dealt specifically with the more limited question of curfews. The House Committee on Interstate and Foreign Commerce, after reciting the serious proportions of the problem, outlined the type of federal regulation that the Act sought to impose:

“The noise problem is basically a conflict between two groups or interests. On the one hand, there is  a group who provide various air transportation services. On the other hand there is a group who live, work, and go to schools and churches in communities near airports. The latter group is frequently burdened to the point where they can neither enjoy nor reasonably use their land because of noise resulting from aircraft operations. Many of them derive no direct benefit from the aircraft operations which create the unwanted noise. Therefore, it is easy to understand why they complain, and complain most vehemently. The possible solutions to this demanding and vexing problem which appear to offer the most promise are (1) new or modified engine and airframe designs, (2) special flight operating techniques and procedures, and (3) planning for land use in areas adjacent to airports so that such land use will be most compatible with aircraft operations. This legislation is directed toward the primary problem; namely, reduction of noise at its source.” (Emphasis added.) H.R. Rep. No. 1463, 90th Cong., 2d Sess., 4.

Far from indicating any total pre-emptive intent, the House Committee observed:

“Rather, the committee expects manufacturers, air carriers, all other segments of the aviation community, and State and local civic and governmental entities to continue and increase their contributions toward the common goal of quiet.” Ibid.

The Senate Commerce Committee’s view of the House bill followed a similar vein:

“This investment by the industry is representative of one of the avenues of approach to aircraft noise reduction, that is, the development of aircraft which generate less noise. Another approach to noise reduction is through the establishment of special flight  operating techniques and procedures. The third principal control technique which merits serious consideration is the planning for land use in areas near airports so as to make such use compatible with aircraft operations. This is a matter largely within the province of State and local governments. While all of these techniques must be thoroughly studied and employed, the first order of business is to stop the escalation of aircraft noise by imposing standards which require the full application of noise reduction technology.

“A completely quiet airplane will not be developed within the foreseeable future. However, with the technological and regulatory means now at hand, it is possible to reduce both the level and the impact of aircraft noise. Within the limits of technology and economic feasibility, it is the view of the committee that the Federal Government must assure that the potential reductions are in fact realized.” S. Rep. No. 1353, 90th Cong., 2d Sess., 2-3.

With specific emphasis on pre-emption, the Senate Committee observed:

“Relation to Local Government Initiatives

“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. In this connection, the question is raised whether this bill adds or subtracts anything from the powers of State or local governments. It is not the intent of the committee in recommending this legislation to effect any change in the existing apportionment of powers between the Federal and State and local governments.

“In this regard, we concur in the following views set forth by the Secretary in his letter to the Committee of June 22, 1968:

“`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 noise level of all overflying aircraft has recently been struck down because it conflicted with Federal regulation of air traffic. American Airlines v. Town of Hempstead, 272 F. Supp. 226 (U.S. D.C., E. D., N. Y., 1966). The court said, at 231, “The legislation operates in an area committed to Federal care, and noise limiting rules operating as do those of the ordinance must come from a Federal source.” 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 powers to control aircraft noise by regulating the flight of aircraft.

“`However, 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.

“`Just as an airport owner is responsible for deciding how long the runways will be, so is the owner responsible for obtaining noise easements necessary to permit the landing and takeoff of the aircraft. The Federal Government is in no position to require an airport to accept service by larger aircraft  and, for that purpose, to obtain longer runways. Likewise, the Federal Government is in no position to require an airport to accept service by noisier aircraft, and for that purpose to obtain additional noise easements. The issue is the service desired by the airport owner and the steps it is willing to take to obtain the service. In dealing with this issue, the Federal Government should not substitute its judgment for that of the States or elements of local government who, for the most part, own and operate our Nation’s airports. The proposed legislation is not designed to do this and will not prevent airport proprietors from excluding any aircraft on the basis of noise considerations.’

“Of course, the authority of units of local government to control the effects of aircraft noise through the exercise of land use planning and zoning powers is not diminished by the bill.

“Finally, since the flight of aircraft has been preempted by the Federal Government, State and local governments can presently exercise no control over sonic boom. The bill makes no change in this regard.” Id., at 6-7.

In terms of pre-emption analysis, the most reasonable reading of § 611 appears to be that it was enacted to enable the Federal Government to deal with the noise problem created by jet aircraft through study and regulation of the “source” of the problem — the mechanical and structural aspects of jet and turbine aircraft design. The authority 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,” 49 U.S.C. § 1431 (a), while a broad grant of authority to the Administrator, cannot fairly be read as prohibiting the States from enacting every type of measure, which  might have the effect of reducing aircraft noise, in the absence of a regulation to that effect under this section. The statute established exclusive federal control of the technological methods for reducing the output of noise by jet aircraft, but that is a far cry from saying that it prohibited any local regulation of the times at which the local airport might be available for the use of jet aircraft.

The Court of Appeals found critical to its decision the distinction between the local government as an airport proprietor and the local government as a regulatory agency, which was reflected in the views of the Secretary of Transportation outlined in the Senate Report on the 1968 Amendment. Under its reasoning, a local government unit that owned and operated an airport would not be pre-empted by § 611 from totally, or, as here, partially, excluding noisy aircraft from using its facilities, but a municipality having territorial jurisdiction over the airport would be pre-empted from enacting an ordinance having a similar effect. If the statute actually enacted drew this distinction, I would of course respect it. But since we are dealing with “legislative history,” rather than the words actually written by Congress into law, I do not believe it is of the controlling significance attributed to it by the court below.

The pre-emption question to which the Secretary’s letter was addressed related to “the field of noise regulation insofar as it involves controlling the flight of aircraft” (emphasis added), and thus included types of regulation quite different from that enacted by the city of Burbank that would be clearly precluded. See American Airlines v. Hempstead, supra. But more important is the highly practical consideration that the Hollywood-Burbank Airport is probably the only nonfederal airport in the country used by federally certified air carriers that is not owned and operated by a state or local  government. There is no indication that this fact was brought to the attention of the Senate Committee, or that the Secretary of Transportation was aware of it in framing his letter. It simply strains credulity to believe that the Secretary, the Senate Committee, or Congress intended that all airports except the Hollywood-Burbank Airport could enact curfews.

Considering the language Congress enacted into law, the available legislative history, and the light shed by these on the congressional purpose, Congress did not intend either by the 1958 Act or the 1968 Amendment to oust local governments from the enactment of regulations such as that of the city of Burbank. The 1972 Act quite clearly intended to maintain the status quo between federal and local authorities. The legislative history of the 1972 Act, quite apart from its concern with avoiding additional pre-emption, discloses a primary focus on the alteration of procedures within the Federal Government for dealing with problems of aircraft noise already entrusted by Congress to federal competence. The 1972 Act set up procedures by which the Administrator of EPA would have a role to play in the formulation and review of standards promulgated by FAA dealing with noise emissions of jet aircraft. But because these agencies have exclusive authority to reduce noise by promulgating regulations and implementing standards directed at one or several of the causes of the level of noise, local governmental bodies are not thereby foreclosed from dealing with the noise problem by every other conceivable method. 

A local governing body that owns and operates an airport is certainly not, by the Court’s opinion, prohibited from permanently closing down its facilities. A local governing body could likewise use its traditional police power to prevent the establishment of a new airport or the expansion of an existing one within its territorial jurisdiction by declining to grant the necessary zoning for such a facility. Even though the local government’s decision in each case were motivated entirely because of the noise associated with airports, I do not read the Court’s opinion as indicating that such action would be prohibited by the Supremacy Clause merely because the Federal Government has undertaken the responsibility for some aspects of aircraft noise control. Yet if this may be done, the Court’s opinion surely does not satisfactorily explain why a local governing body may not enact a far less “intrusive” ordinance such as that of the city of Burbank.

The history of congressional action in this field demonstrates, I believe, an affirmative congressional intent to allow local regulation. But even if it did not go that far, that history surely does not reflect “the clear and manifest purpose of Congress” to prohibit the exercise of “the historic police powers of the States” which our decisions require before a conclusion of implied pre-emption is reached. Clearly Congress could pre-empt the field to local regulation if it chose, and very likely the authority conferred on the Administrator of FAA by 49 U.S.C. § 1431 is sufficient to authorize him to promulgate regulations effectively pre-empting local action. But neither Congress nor the Administrator has chosen to go that route. Until one of them does, the ordinance of the city of Burbank is a valid exercise of its police power.

The District Court found that the Burbank ordinance would impose an undue burden on interstate commerce,  and held it invalid under the Commerce Clause for that reason. Neither the Court of Appeals nor this Court’s opinion, in view of their determination as to pre-emption, reached that question. The District Court’s conclusion appears to be based, at least in part, on a consideration of the effect on interstate commerce that would result if all municipal airports in the country enacted ordinances such as that of Burbank. Since the proper determination of the question turns on an evaluation of the facts of each case, see, e. g., Bibb v. Navajo Freight Lines, 359 U.S. 520 (1959), and not on a predicted proliferation of possibilities, the District Court’s conclusion is of doubtful validity. The Burbank ordinance did not affect emergency flights, and had the total effect of prohibiting one scheduled commercial flight each week and several additional private flights by corporate executives; such a result can hardly be held to be an unreasonable burden on commerce. Since the Court expresses no opinion on the question, however, I refrain from any further analysis of it.