City of Burbank v. Lockheed Air Terminal, Inc.

delivered the opinion of the Court.

The Court in Cooley v. Board of Wardens, 12 How. 299, 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 of 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 aircraft 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. 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 preemption, 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, 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, 272 F. Supp. 226, 230, aff’d, 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 FA A to act at large but provided in § 611 (d), as amended, particularized standards:

“In prescribing and amending standards and regulations under this section, the FA A 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 reasonable, technologically practicable, and appropriate for the particular type of aircraft, aircraft engine, appliance, 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 FA A, 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:

“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 were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress. . . . Such a purpose may be evidenced in several ways. The scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. . . . Or the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. . . . Likewise, the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose. ... Or the state policy may produce a result inconsistent with the objective of the federal statute.”

It is the pervasive nature of the scheme of federal regulation of aircraft noise that leads us to conclude that there is pre-emption. As Mr. Justice Jackson stated, concurring in Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292, 303:

“Federal control is intensive and exclusive. Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands. The moment a ship taxis onto a runway it is caught up in an elaborate and detailed system of controls.”

Both the Senate and House Committees included in their Reports clear statements that the bills would not change the existing pre-emption rule. The House Report stated: 9 “No provision of the bill is intended to alter in any way the relationship between the authority of the Federal Government and that of the 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.” The Senate Report stated: 10 “States and local governments are preempted from establishing or enforcing noise emission standards for aircraft 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.”

These statements do not avail appellants. Prior to the 1972 Act, § 611 (a) provided that the Administrator “shall 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.” 82 Stat. 395. Under §611 (b)(3) the Administrator was required to “consider whether any proposed standard, rule, or regulation is consistent with the highest degree of safety in air commerce or air transportation in the public interest.” 82 Stat. 395. When the legislation which added this section to the Federal Aviation Act11 was considered at Senate hearings, Senator Monroney (the author of the 1958 Act) asked Secretary of Transportation Boyd whether the proposed legislation would “to any degree preempt State and local government regulation of aircraft noise and sonic boom.” 12 The Secretary requested leave to submit a written opinion, and in a letter dated June 22, 1968, he stated:

“The courts have held that the Federal Government presently preempts the field of noise regulation insofar as it involves controlling the flight of aircraft. .... 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.”

According to the Senate Report,13 it was “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,” and the Report concurred in the views set forth by the Secretary in his letter.1414

The Senate version of the 1972 Act as it passed the Senate contained an express pre-emption section.15 But the Senate version never was presented to the House. Instead, the Senate passed, with amendments, the House version;16 the House, also with amendments, then concurred in the Senate amendments.17 The Act as passed combined provisions of both the House and Senate bills on the subject that each had earlier approved. When the blended provisions of the present Act were before the House, Congressman Staggers, Chairman of the House Committee on Interstate and Foreign Commerce, in urging the House to accept the amended version, said: 18

“I cannot say what industry’s intention may be, but I can say to the gentleman what my intention is in trying to get this bill passed. We have evidence that across America some cities and States are trying to pass noise regulations. Certainly we do not want that to happen. It would harass industry and progress in America. That is the reason why I want to get this bill passed during this session.”

When the House approved the blended provisions of the bill, Senator Tunney moved that the Senate concur. He made clear19 that the regulations to be considered by EPA for recommendation to FAA would include:

“proposed means of reducing noise in airport environments through the application of emission controls on aircraft, the regulation of flight patterns and aircraft and airport operations, and modifications in the number, frequency, or scheduling of flights [as well as] . . . the imposition of curfews on noisy airports, the imposition of flight path alterations in areas where noise was a problem, the imposition of noise emission standards on new and existing aircraft — with the expectation of a retrofit schedule to abate noise emissions from existing aircraft — the imposition of controls to increase the load factor on commercial flights, or other reductions in the joint use of airports, and such other procedures as may be determined useful and necessary to protect public health and welfare.” (Emphasis added.)

The statements by Congressman Staggers and Senator Tunney are weighty ones. For Congressman Staggers was Chairman of the House Committee on Interstate and Foreign Commerce which submitted the Noise Control Act and Report; and Senator Tunney was a member of the Senate Committee on Public Works, which submitted the Act and Report.

When the President signed the bill he stated that “many of the most significant sources of noise move in interstate commerce and can be effectively regulated only at the federal level.” 20

Our prior cases on pre-emption are not precise guidelines in the present controversy, for each case turns on the peculiarities and special features of the federal regulatory scheme in question. Cf. Hines v. Davidowitz, 312 U. S. 52; Huron Portland Cement Co. v. Detroit, 362 U. S. 440. Control of noise is of course deep-seated in the police power of the States. Yet the pervasive control vested in EPA and in FAA under the 1972 Act seems to us to leave no room for local curfews or other local controls. What the ultimate remedy may be for aircraft noise which plagues many communities and tens of thousands of people is not known. The procedures under the 1972 Act are under way.21 In addition, the Administrator has imposed a variety of regulations relating to takeoff and landing procedures and runway preferences. The Federal Aviation Act requires a delicate balance between safety and efficiency, 49 U. S. C. § 1348 (a), and the protection of persons on the ground. 49 U. S. C. § 1348 (c). Any regulations adopted by the Administrator to control noise pollution must be consistent with the “highest degree of safety.” 49 U. S. C. § 1431 (d)(3). The interdependence of these factors requires a uniform and exclusive system of federal regulation if the congressional objectives underlying the Federal Aviation Act are to be fulfilled.

If we were to uphold the Burbank ordinance and a significant number of municipalities followed suit, it is obvious that fractionalized control of the timing of takeoffs and landings would severely limit the flexibility of FAA in controlling air traffic flow.22 The difficulties of scheduling flights to avoid congestion and the concomitant decrease in safety would be compounded. In 1960 FAA rejected a proposed restriction on jet operations at the Los Angeles airport between 10 p. m. and 7 a. m. because such restrictions could “create critically serious problems to all air transportation patterns.” 25 Fed. Reg. 1764-1765. The complete FAA statement said:

“The proposed restriction on the use of the airport by jet aircraft between the hours of 10 p. m. and 7 a. m. under certain surface wind conditions has also been reevaluated and this provision has been omitted from the rule. The practice of prohibiting the use of various airports during certain specific hours could create critically serious problems to all air transportation patterns. The network of airports throughout the United States and the constant availability of these airports are essential to the maintenance of a sound air transportation system. The continuing growth of public acceptance of aviation as a major force in passenger transportation and the increasingly significant role of commercial aviation in the nation’s economy are accomplishments which cannot be inhibited if the best interest of the public is to be served. It was concluded therefore that the extent of relief from the noise problem which this provision might have achieved would not have compensated the degree of restriction it would have imposed on domestic and foreign Air Commerce.”

This decision, announced in 1960, remains peculiarly within the competence of FAA, supplemented now by the input of EPA. We are not at liberty to diffuse the powers given by Congress to FAA and EPA by letting the States or municipalities in on the planning. If that change is to be made, Congress alone must do it.

Affirmed.