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British Airways Bd. v. Port Auth. of N.Y. & N.J.

Citation: 7 ELR 20512
No. No. 77-7237, 558 F.2d 75/10 ERC 1216/(2d Cir., 06/14/1977) Rev'd & remanded

The Second Circuit reverses and remands the district court decision, 7 ELR 20447, which allowed the Concorde supersonic transport to land at New York's Kennedy Airport. The district court erroneously found that the decision of the Secretary of Transportation authorizing Concorde flights preempted defendant's noise regulations. This finding contradicts the Secretary's express statement of non-preemption, affirmed by the new Administration, of local airport proprietor's noise regulation powers. The long-lasting cooperative federal/state scheme for airport noise regulation sanctions local noise regulation, which must not unreasonably or discriminately hinder national goals of aircraft transportation. If the Port Authority's ban is found to be arbitrary or discriminatory, a serious question would be raised concerning its compatibility with federal treaty arrangements. The court remands the case for evidentiary hearings on whether the defendant's 13-month delay in promulgating reasonable noise regulations is so excessive as to constitute unfair discrimination and an undue burden on commerce.

Moving papers may be found at 65407.

Counsel are listed at 7 ELR 20447. Additional counsel for amicus curiae are:

United States of America
James R. Moorman, Acting Ass't Attorney General; Edmund B. Clark, Peter R. Steenland
Department of Justice, Washington DC 20530
(202) 739-4426

Government of the United Kingdom
Henry L. Diamond
Beveridge, Fairbanks & Diamond
1 Farragut Square South, Washington DC 20006
(202) 638-7800

Government of France
Charles G. Goodell
Hydeman, Mason & Goodell
1220 19th St., NW, Washington DC 20036
(202) 833-9040

State of New York
Louis J. Lefkowitz, Attorney General; Samuel A. Hirshowitz, First Ass't Attorney General; Philip Weinberg, John F. Shea, III
State Capitol, Albany NY 12224
(518) 474-7330

State of California
Evelle J. Younger, Attorney General; Larry C. King, Deputy Attorney General
555 Capitol Mall, Sacramento CA 95814
(916) 445-9555

Kaufman, C.J. joined by Mansfield & Van Graafeiland, JJ.