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2 ELR 20596 | Environmental Law Reporter | copyright © 1972 | All rights reserved Air Transport Association of America v. Ingle-WoodCivil Nos. 71-1153-CC; 71-1632-CC (C.D. Cal. May 22, 1972)The pervasiveness of federal regulation in the field of air commerce, the intensity of the national interest in this regulation, and the nature of air commerce itself require the unavoidable conclusion that state and local regulation in that area has been preempted. A state or local government cannot use its police power to attempt to regulate this field. Section 611, 49 U.S.C. 1431, which was added to the Federal Aviation Act in July, 1968, specifically provides for responsibility of the FAA Administrator with respect to ecological and environmental problems. This section gives the Administrator power to deal with noise created by low-flying aircraft, take-offs and landings, and the noise created by aircraft on the ground at airports. Sections 4620 and 4620.1 of the Inglewood, California Municipal Code, which seek to regulate the permissible levels of noise of aircraft flying over Inglewood on approach to, and departure from, Los Angeles International Airport, are unconstitutional, illegal and void under the Supremacy Clause of the U.S. Constitution. Plaintiffs are entitled to a permanent injunction restraining defendants from enforcing or attempting to enforce the Inglewood ordinance. Counsel for Plaintiffs in Case No. 71-1153-CC Samuel J. Cohen Counsel for Plaintiff United States in Case No. 71-1632-CC Counsel for Defendants Carr, J. The above-entitled cause came on regularly for hearing before this Court on June 19, 1972, the Honorable Charles H. Carr, United States District Judge, presiding, on motion of plaintiffs in each of the consolidated actions for summary judgment; in Case No. 71-1153-CC, plaintiffs Air Transport Association of America and Continental Air Lines, Inc., being represented by O'Melveny & Myers, Warren Christopher, Ralph W. Dau and Francis J. Burgweger, Jr., plaintiffs John J. O'Donnell, Air Line Pilots Association, International, Arthur J. Sparks, Robert C. Blainey and Philip H. Owens being represented by Cohen, Weiss & Simon, Samuel J. Cohen, and Bodle, Fogel, Julber, Reinhardt & Rothschild, George E. Bodle; in Case No. 71-1632-CC, plaintiff United States of America being represented by William D. Keller, United States Attorney, Frederick M. Brosio, Jr., Assistant U.S. Attorney, and Gary H. Giesler, Assistant U.S. Attorney; and defendants in the consolidated actions being represented by Donald E. Olson, Inglewood City Attorney, and Mark L. Dees, Senior Deputy City Attorney; whereupon evidence in the form of agreed facts and authenticated documents having been introduced by plaintiffs, the cause having been argued and submitted for decision and plaintiffs in each of the consolidated actions having submitted their Proposed Findings of Fact and Conclusions of Law and Proposed Summary Judgment; WHEREFORE, the Court being fully advised in the premises now renders its decision as follows: 1. Plaintiff Air Transport Association of America (hereinafter "ATA") is an unincorporated trade association, the members of which include virtually all United States scheduled air carriers. Among its 29 members are the following air carriers which operate jet aircraft in regularly scheduled interstate or international operations into and from Los Angeles International Airport: 2. Plaintiff Continental Air Lines, Inc., is a corporation organized and existing under the laws of the State of Nevada and is a United States air carrier subject to the federal scheme of regulation, inspection and certification with respect to its operations and equipment, as more fully appears hereinafter. 3. Continental Air Lines operates jet aircraft in regularly scheduled interstate flights into and from Los Angeles International Airport ("LAX") under authority of a certificate of public convenience and necessity issued by the Civil Aeronautics Board. Each Continental flight which conducts an approach to landing at LAX from the east or a departure from takeoff toward the east is necessarily operated over areas of the City of Inglewood. 4. Plaintiff John J. O'Donnell is the president of Air Line Pilots Association, International ("ALPA"). Plaintiff ALPA is an unincorporated association organized for the purposes and objectives of a labor organization. ALPA has actively represented pilots, co-pilots and flight deck crew members for the purpose of collective bargaining and for the purpose of developing and maintaining standards of safety in matters pertaining to air transportation since 1933. It is the duly authorized collective bargaining representative under the Railway Labor Act of flight deck operating crew members employed by nearly all scheduled air carriers in the United States. It currently has collective bargaining agreements covering pilots and other crew members with over 45 common carriers by air. 5. Plaintiffs Arthur J. Sparks, Robert C. Blainey and Philip H. Owens are members of ALPA and employees of Continental Air Lines and, on or about March 9, 1971, were acting as captain, first officer and second officer, respectively, of Continental Flight 25 operating from Denver, Colorado, to Los Angeles International Airport. Plaintiffs Sparks and Blainey each hold current air transport pilot certificates issued by the Administrator of the Federal Aviation Administration (hereinafter "the Administrator"); plaintiff Owens holds a current flight engineer's certificate issued by the Administrator. 6. The Federal Aviation Administration (FAA) is an agency of plaintiff the United States of America. The Administrator of the FAA is charged by statute with regulation of the flight of aircraft, the use of the navigable airspace and the establishment of standards for permissible noise emissions by aircraft. 7. Defendant City of Inglewood is a municipal corporation in the County of Los Angeles, State of California, having power to sue and be sued in its own name. Defendant Donald E. Olson is the City Attorney for the City of Inglewood. Defendant Olson and the attorneys within his office are responsible for prosecuting violations of ordinances and other misdemeanors within the City of Inglewood. 8. The Inglewood Municipal Code contains a noise ordinance which became effective on November 6, 1970. (a) This ordinance contains the following preamble: "It is hereby declared to be the policy of the City to prohibit unnecessary, excessive, and annoying noises from all sources subject to its police power. At certain levels noises are detrimental to the health and welfare of the citizenry and in the public interest shall be systematically proscribed." (b) Sections 4620 and 4620.1 of the Inglewood Municipal Code provide as follows: "It shall be unlawful for any person to operate or cause to be operated any type of aircraft over the City which produces noise levels exceeding 90 dbA within the City." "Any aircraft operated in conformity with, or pursuant to, federal law, federal air regulations, and air traffic control instruction used pursuant to and within the duly adopted federal air regulations shall be exempt from the provisions of Section 4620 as well as the other regulations of this ordinance. Any aircraft operating under technical difficulties, in any kind of distress, under emergency orders of air traffic control or being operated pursuant to and subsequent to the declaration of an emergency under federal air regulations shall also be exempt from the provisions of Section 4620 as well as the other regulations of this ordinance." 9. Violation of the Inglewood ordinance constitutes a misdemeanor punishable by $500 fine or six months in jail, or both. Defendant Olson and other officials of defendant City of Inglewood have publicly announced their intention to enforce said ordinance and to institute criminal proceedings against any person alleged to be in violation thereof, including air carriers and their crew members. Regulation and Control of the Flight of Aircraft by the Administrator of the FAA 10. Pursuant to statutory authority, the Administrator of the [2 ELR 20598] FAA has promulgated extensive operational rules and regulations which control the flight of aircraft (14 C.F.R. Parts 91, 93, 95 and 97) and govern the use of the navigable airspace (14 C.F.R. Parts 71, 73, 75 and 77). The Administrator has also issued certificates, promulgated regulations dealing with certification procedures for products and parts for use on aircraft, made recommendations and undertaken developmental work on aircraft as statutorily authorized. 11. The Postmaster General has issued authorized regulations regarding carriage of mail by aircraft. 12. The Civil Aeronautics Board ("CAB") has issued authorized certificates of public convenience and necessity. 13. Pursuant to statutory authority, the Administrator of the FAA has determined that a need exists for a system to provide adequate separation between and orderly control of the air traffic emanating from points within and without the United States and converaging on large metropolitan areas and airports. Accordingly, the Administrator has established a system for the control of air traffic which provides for such orderly control and separation, and which operates within controlled airspace designated as "federal airways," "control zones," "control areas" and "terminal control areas." (See FAR 1.1.) 14. Each federal airway includes the airspace within four miles each side of a centerline that extends from one navigational air or intersection to another navigational aid specified for that airway. (FAR 71.5.) 15. In the continental United States control zones encompass all the airspace from the surface to 14,500 feet above sea level within five miles of the geographical center of an airport. (FAR 71.11.) 16. Control areas are of varying elevations and dimensions and include the area surrounding Los Angeles International Airport. (See FAR 71.7.) 17. An airport traffic area includes the airspace from the surface up to 3,000 feet within a horizontal radius of 5 miles from the geographical center of any airport at which a control tower is operating. (FAR 1.1.) 18. A terminal control area consists of controlled airspace extending upward from the surface or higher to specified altitudes, within which allaircraft are subject to operating rules and pilot and equipment requirements specified in Part 91 of the Federal Aviation Regulations. (FAR 71.12.) Effective September 16, 1971 the FAA established the Los Angeles Terminal Control Area. 36 Fed. Reg. 13375. 19. Los Angeles International Airport is located under a control area, within an airport traffic area, within a control zone, and within a terminal control area, all of which have been established by the Administrator pursuant to statutory authority. 20. The Inglewood Aircraft Monitoring Station described in Finding 52, infra, is located under a control area, within a control zone, within an airport traffic area, and within Area B of the Los Angeles Terminal Control Area, which area extends from the surface upward to 7,000 feet above sea level at said station. 21. Regardless of weather conditions, an air traffic control clearance is required prior to operating within the Los Angeles Terminal Control Area. Unless otherwise authorized by FAA Air Traffic Control, and subject to the final authority and responsibility of the pilot to assure the safe operation of his aircraft, a pilot operating within an airport traffic area must maintain two-way radio communication with the control tower. (FAR 91.87(b).) He is further required to comply with all clearances and instructions that may be issued by Air Traffic Control. (FAR 91.75(b).) Control of air traffic within control zones, including approach control and departure control, is exercised by FAA personnel located in the airport control towers. Except when in direct communication with the control tower, each air carrier is required by its Operations Specifications to operate its jet aircraft in accordance with FAA Instrument Flight Rules ("IFR"). When not under the control of an FAA airport control tower, aircraft operating under IFR are under the direct control of an FAA Air Route Traffic Control Center and are required to comply with clearances received from that facility. (FAR 91.115, 91.75(a).) 22. During every portion of a flight operated under FAA Instrument Flight Rules, the aircraft involved is subject to the instructions and control of an FAA facility. 23. On its entry into the greater Los Angeles area, a Los Angeles-bound commercial jet aircraft is under the air traffic control of the FAA Air Route Traffic Control Center located at Palmdale, California. When the aircraft is approximately 20 to 45 miles from Los Angeles International Airport, control of the aircraft is passed to Los Angeles Approach Control, which is located in the FAA Control Tower at Los Angeles International Airport. At that time, Approach Control confirms both radio and radar contact and assigns a specific altitude and compass heading at which the aircraft is to fly. 24. On entering and operating within the Los Angeles International Airport traffic area, jets and other large aircraft are required by Federal Aviation Regulations to operate at an altitude of 1,500 feet "until further descent is required for a safe landing." (FAR 91.87(d)(1).) 25. No aircraft may land at Los Angeles International Airport without first receiving an Air Traffic Control clearance, which includes assignment by the FAA of a specific runway for landing. (FAR 91.87(h).) 26. Los Angeles International Airport (LAX) contains four parallel runways, two of which are located south of the terminal area and two north of the terminal area. Each of these runways is situated on an axis of 248 degrees-068 degrees. Because of prevailing wind conditions, aircraft landing and taking off at the Airport move from east to west approximately 97% of the time. To aircraft approaching the Airport for landing from the east or departing to the west, the runways south of the terminal are designated 25L (left) and 25R (right), and the runways north of the terminal are designated 24L and 24R. On the rare occasions when aircraft traffic moves from west to east, the south complex runways are designated 7R and 7L, and the north complex runways are designated 6R and 6L. 27. Prior to the initial use of each runway at LAX for jet aircraft landings and takeoffs, a determination was made by the FAA that such use of each runway would not be unsafe either to persons or property on the ground or to persons and property in the air. 28. In June, 1947 the FAA commissioned an Instrument Landing System ("ILS") serving runway 25L, and in February, 1968, an ILS serving runway 24L, which was changed in April, 1970 to serve 24R. These systems electronically establish a 3 degrees glide slope to the respective runways which they serve. 29. Turbine-powered or large (over 12,500 pounds) aircraft approaching to land on a runway being served by an ILS are required by Federal Aviation Regulations (FARs) to fly "at an altitude at or above the [ILS] glide slope between the outer marker (or the point of interception with the glide slope, if compliance with the applicable distance from clouds criteria requires interception closer in) and the middle marker . . . ." (FAR 91.87(d)(2).) However, "normal bracketing maneuvers above or below the glide slope that are conducted for the purpose of remaining on the glide slope" are permitted. (FAR 91.87(d).) 30. At Los Angeles International Airport, the outer ILS marker for runway 25L is located 5.545 nautical miles from the glide slope transmitter near the approach end of ther runway and the middle marker is located .723 nautical miles from said transmitter. The glide slope altitude at the outer marker for runway 25L is 1,886 feet above sea level and is 324 feet at the middle marker. The outer marker for runway 24R is located approximately 6.44 nautical miles from the glide slope transmitter near the approach end of that runway and the middle marker is located .64 nautical miles from said transmitter. The glide slope altitude at the outer marker for runway 24R is 2,196 feet aove sea level and is 317 feet at the middle marker. 31. As an additional means of approach control, the FAA prescribes standard instrument approach procedures which are published in Part 97 of the Federal Aviation Regulations. Pictorial charts showing these standard instrument approach procedures are published by the National Ocean Survey, National Oceanic and Atmospheric Administration and approved by the FAA. Approaches to LAX conducted under instrument flight rules are required to be in accordance with standard instrument approach procedures applicable to the runway assigned by FAA Approach Control. 32. Neither runway 25R nor runway 24L at LAX is served by [2 ELR 20599] a visual approach slope indicator such as that referred to in FAR 91.87(d)(3). Jet aircraft cleared to land on runway 25R or runway 24L conduct visual or contact approaches to landing and are required to operate at an altitude of 1,500 feet "until further descent is required for a safe landing." (FAR 91.87(d)(1).) 33. No aircraft may taxi at or take off fromLAX without first receiving an appropriate clearance from Air Traffic Control (FAR 91.87(h)). On receiving such clearance to take off, each jet or other large aircraft is required to conform with all FAA takeoff procedures and to climb to an altitude of 1,500 feet above the airport surface as rapidly as practicable. (FAR 91.87(f)(2).) 34. Departure clearances for aircraft operating under FAA Instrument Flight Rules ("IFR") incorporates standard instrument departure procedures established for LAX by the FAA. Pictorial charts showing these standard instrument departure procedures are published by the National Ocean Survey, National Oceanic and Atmospheric Administration and approved by the Department of Defense, the FAA and the Department of Commerce. 35. Aircraft taking off from Los Angeles International Airport are required by FAR 91.75(a) to conform with the assigned FAA departure clearance including all standard IFR departure procedures incorporated therein. 36. When a commercial jet aircraft is ready for departure from its terminal gate at LAX, it makes radio contact with Los Angeles Air Traffic Control. It is at that time assigned a runway for takeoff and is ultimately given clearance to taxi thereto. Prior to taking its position on the runway assigned for takeoff, a commercial jet aircraft is given departure clearance which includes the assignment of departure procedures and the assignment of a radio beam intersection to which the aircraft is directed to fly. 37. Takeoffs at LAX are to the west approximately 97% of the time. Takeoff procedures at LAX require the aircraft to delay all turns until passing the coastline and to climb as rapidly as practicable to an altitude of 1,500 feet above the airport surface. Upon reaching an altitude and position clear of other traffic (always over the Pacific on takeoffs to the west), control of the aircraft is passed from Los Angeles Departure Control to the FAA Air Route Traffic Control Center located at Palmdale, California. Regulation of Control and Abatement of Aircraft Noise by the Administrator of the FAA 38. Congress, the National Aeronautics and Space Administration, the Department of Housing and Urban Development, the Department of Health, Education and Welfare and the FAA, as a part of the Department of Transportation, have embarked on research programs whereunder they are seeking technological advances in the art of aviation noise control. 39. Pursuant to the direction of Section 611 of the Act, on November 17, 1969, the Administrator adopted regulations prescribing noise standards which must be met as a condition to the issue of type certificates, and to the approval of changes in type certificates, for all subsonic, turbojet-powered aircraft. 34 Fed. Reg. 18355. Under the "acoustical change" requirement, which is a part of these regulations, no currently certificated jet aircraft (Boeing 707, 720, 727, 737 and 747 and McDonnell-Douglas DC-8 and DC-9) that exceeds the noise limits specified for new type designs, which limits will apply to all Boeing 747 aircraft manufactured after December 1, 1971 and to Boeing 727-200, McDonnell-Douglas DC-10 and Lockheed L-1011 aircraft, may be modified to increase its noise over that of the parent airplane. These noise standards are published in Part 36 of the Federal Aviation Regulations. 40. As an additional noise abatement measure, the FAA is currently considering rule making to establish noise reduction requirements that would involve modification of jet aircraft types already certified.In this connection, on October 30, 1970, the Administrator issued an Advance Notice of Proposed Rulemaking concerning "civil airplane noise reduction retrofit requirements." 35 Fed.Reg. 16980. Said advance notice invited interested persons to participate in the rule making by submitting written data, views or arguments by January 29, 1971. The FAA is now in the process of reviewing the many comments received. 41. The current state of the art relative to reducing noise in the current fleet of aircraft is as stated by the Administrator in Section III of his Advance Notice of Proposed Rule-Making at 35 Fed. Reg. 16981-82. 42. On September 27, 1961, the Administrator issued an amendment to 14 C.F.R. § 60.18 (now 14 C.F.R. § 91.87) which is applicable to all traffic in the vicinity of airports with control towers and which has the purpose, among others, of aiding in the "abatement of aircraft noise as it affects adjacent communities." 26 Fed. Reg. 9069. 43. Under 14 C.F.R. § 60.18 (now 14 C.F.R. § 91.87) the FAA has established noise abatement flight and preferential runway use procedures which are applicable at LAX and which are designed to reduce the noise disturbance to adjoining residential communities. Pursuant to the noise abatement flight and preferential runway use procedures, FAA Control tower personnel are directed to and do employ the noise abatement runway system described therein. Under said program, pilots of large fixed-wing aircraft landing at or taking off from the Airport are required, subject to the pilot's command responsibility to assure safe operation of the aircraft, to use a preferential runway when it has been assigned by the Airport Traffic Control Tower. 44. During normal operations at LAX, when aircraft are approaching from the east for landing to the west, the following noise abatement flight and preferential runway use procedures are employed by the FAA to minimize the noise disturbance to adjoining residential communities: (a) In assigning runways for landings, FAA controllers accord preference to the south complex runways (25L/R) at all times. (b) The north complex runways (24L/R): (i) are assigned for use only by piston engine, turboprop and jet aircraft smaller than DC-9 and Boeing 737 between the hours of 0700 and 2200 local time; (ii) are not assigned for use by piston engine, turboprop and jet aircraft smaller than DC-9 and Boeing 737 from 2200 to 0700; (iii) are used for other aircraft only when necessary to relieve the traffic situation, except that because of present runway load limitations, all Boeing 747 operations must be conducted on the north runway complex. (c) When simultaneous instrument landing system ("ILS") approaches are being conducted to Runways 25L and 24R, aircraft are assigned to runway 25L as much as practicable and runway 24R only when necessary to avoid delays. (d) Commercial jet aircraft approaching to land on runways being served by an ILS (25L and 24R) are required to fly at an altitude at or above the glide slope between the outer ILS marker and the middle ILS marker, except for normal bracketing maneuvers. (e) Aircraft conducting visual approaches are assigned to runway 24L only if such approaches cannot be conducted to runway 25R. (f) FAA air traffic controllers instruct all turbojet-powered aircraft and four-engine, turboprop-powered aircraft making visual approaches to landing from the east to turn to their final approach heading at or above an altitude of 2,000 feet above sea level east of Hollywood Park. 45. During normal operations at LAX when aircraft are taking off to the west, the following nose abatement flight and preferential runway sue procedures are applied by the FAA to such takeoffs: (a) Simultaneous instrument flight rules ("IFR") departures may be conducted on runways 25R and 24L. Aircraft departing to a destination in the northwest or the northeast are assigned to runway 24L for takeoff, and aircraft departing to a destination in the east or the southeast are assigned to runway 25R. (b) As between the north complex runways, for aircraft departing to the west runway 24L is the preferential runway over runway 24R. (c) Runway 24L is available for unrestricted operations for all types of aircraft between the hours of 0700 and 2200. (d) Unrestricted operations for all aircraft during the other hours may be conducted on this runway whenever adverse weather conditions have caused a backlog of aircraft movements or when one of the south complex runways (25L/R) is out of service. (e) Commercial jet aircraft taking off to the west, after a slight heading adjustment, are required to climb as rapidly as practicable and maintain their runway heading until they have passed the shoreline and reached an altitude of 3,000 feet before making a right or left turn. 46. In the interest of alleviating noise disturbances to the residents of communities adjoining airports located in metropolitan areas, the Administrator has established regulations that require turbine-powered fixed-wing aircraft, approaching for landing, to maintain within the airport traffic area an altitude of at least 1,500 feet above the surface of the airport "until further descent is required for a safe landing," and require such aircraft, when taking off, to climb to 1,500 feet "as rapidly as practicable." (FAR 91.87 (d)(1), (e)(2).) 47. Solely as a noise abatement measure, in October 1959 the FAA altered the instrument landing system glide slope at Los Angeles International Airport for landing from the east from 2.75 degrees to 3 degrees. 48. Where possible, the FAA has developed standard instrument departure procedures which are assigned between the hours of 2100 and 0700 in order to reduce noise over residential areas during those hours. Such a standard instrument departure, the "Ocean" SID, has been developed by the FAA and is presently in effect at LAX. Commercial jet aircraft departing the Airport between 2100 and 0700 must comply with the procedures contained in the Ocean SID. In the event that the Ocean SID is not designated in the flight plan filed for a departing commercial jet aircraft, this departure will be assigned between the hours of 2100 and 0700 by incorporation into the aircraft's departure clearance as an instruction to the pilot. 49. The Court makes no finding whether the actions of the FAA described in Findings 38-48 have or have not reduced aircraft noise disturbance to the lowest attainable minimum. Air Carrier Operations in Compliance with the Federal Scheme of Regulation 50. In connection with the operations of Continental Air Lines and each of the other United States air carrier members of ATA into and out to LAX: (a) Each of said carriers operates under authority of a Certificate of Public Convenience and Necessityduly issued by the CAB. Said certificates provide that the airline is authorized "to engage in air transportation with respect to persons, property, and mail" over specified routes into and out of the City of Los Angeles. (b) Each of said carriers holds an Air Carrier Operating Certificate issued by the Administrator of the FAA specifying that each of said companies, save Flying Tiger, is "properly and adequately equipped and able to conduct a safe operation as an air carrier of persons, property, and mail in scheduled air transportation." (c) Each of said carriers has been issued Operations Specifications by the Administrator of the FAA pursuant to Sections 121.25 and 129.11 of the Federal Aviation Regulations (FARs). FARs 121.3 and 129.11 and the operating certificates held by such airlines specifically require that each airline conduct its operations in accordance with its operations specifications. The operations specifications issued to said airlines specify, among other things, the kinds of operations authorized, the types of airplanes authorized for use, the various airports at which operations are authorized and the limitations imposed on the use of each such airport, and the approved routes over which it may operate. Said operations specifications provide that each said carrier is authorized to use Los Angeles International Airport as a regular airport. The operations conducted at LAX by each of said airlines are specifically authorized by its operations specifications. (d) Each type aircraft operated by said carriers is the subject of a Type Certificate issued by the Administrator of the FAA to the manufacturer of such aircraft, which certificate provides that the type aircraft for which it was issued "meets the airworthiness requirements" of the Federal Aviation Regulations. In addition, each type of engine and appliance installed on each such aircraft is the subject of a Type Certificate issued by the Administrator. (e) The Administrator of the FAA has issued Production Certificates authorizing the production of duplicates of each type of jet aircraft and jet engine for which type certificates were issued. Said Production Certificates provide that the facilities, methods and procedures of the manufacturer were demonstrated as being adequate for the production of such duplicates. (f) Every aircraft operated by each United States air carrier member of ATA holds a currently effective Airworthiness Certificate issued by the Administrator of the FAA approving its use on certificated operations. Each certificate provides that the aircraft for which it was issued has been inspected and found to conform to the Type Certificate therefor and to be in condition for safe operation. (g) Every flight crew member operating each said aircraft holds a valid and effective airman's certificate issued by the FAA. (h) Each of said carriers is authorized and required to transport United States mail by its certificate of public convenience and necessity. 51. Air Canada operates as a foreign air carrier pursuant to a bilateral air transport agreement between the governments of the United States and Canada. Air Canada holds a CAB permit, which has been approved by the President of the United States, authorizing said carrier to provide international air service over the route specified in the bilateral agreement. In addition, each aircraft operated by Air Canada holds certificates of airworthiness issued by the government of Canada, which certificates are recognized by the United States, and the FAA has issued operations specifications which authorize the operations conducted by Air Canada at Los Angeles International Airport. Attempted Regulation by the City of Inglewood of Noise Emitted by Aircraft in Flight. 52. The City of Inglewood maintains a mobile sound monitoring station consisting of a Dodge van truck, equipped with microphones, sound level meters and recorders, tape recorders, cameras, and a VHF radio receiver. When this mobile station is parked and its equipment is deployed and activated as the City's "aircraft monitoring station," it is located on a vacant lot near the intersection of 104th and Dixon Streets in the City of Inglewood. The station was so deployed and activated on March 9, 1971. Said location is under the landing pattern for Runway 25L and between the middle and outer markers of the ILS, approximately 16,000 feet east of the glide slope transmitter at an altitude of 114 feet above sea level ("m.s.l."). The altitude of the center of the glide slope at the monitoring station is 932.16 feet m.s.l. [818.16 feet above ground level ("a.g.l.")]. The ILS is designed to transmit a glide slope signal which extends 196 feet above and below the center of the glide slope at the monitoring station, or from 736.16 feet m.s.l. (622.16' a.g.l.) to 1128.32 feet m.s.l. (1014.32' a.g.l.). 53. On March 9, 1971, a jet aircraft owned by Continental Air Lines carrying passengers and United States mail and operating as Continental Flight 25 was en route from Denver, Colorado, to Los Angeles International Airport. At about the outer market for runway 25, Continental Flight 25 received clearance from FAA Approach Control to approach and land on runway 25L. Upon receiving such clearance, Continental Flight 25 conducted an ILS approach to and landing on runway 25L. 54. On March 9, 1971, aircraft N-17326, which is a Boeing 707 aircraft, was operating as Continental Flight 25 enroute from Denver, Colorado, to Los Angeles International Airport. (a) Said aircraft was operating under authority of a Certificate of Public Convenience and Necessity duly issued [2 ELR 20601] by the CAB. (b) Said aircraft was operating under authority of an Air Carrier Operating Certificate duly issued by the Administrator of the FAA. (c) Said aircraft was operating under authority of Operations Specifications duly issued by the Administrator of the FAA. (d) Said Boeing 707 aircraft and each type of engine and appliance installed thereon is the subject of a Type Certificate duly issued by the Administrator of the FAA to the manufacturer of such aircraft. (e) Said aircraft was manufactured under authority of a Production Certificate duly issued by the Administrator of the FAA. (f) Said aircraft held a currently effective Airworthiness Certificate duly issued by the Administrator of the FAA approving its use on certificated operations. 55. On or about March 17, 1971, defendant Olson caused to be filed in the Municipal Court of the Inglewood Judicial District, County of Los Angeles, State of California, a criminal complaint styled The People of the State of California v. Continental Airlines, Inc., et al., Case No. M 66090, which charges Continental and plaintiffs Sparks, Blainey and Owens with violation of Section 4620 of the Inglewood Municipal Code. It is alleged in said complaint that on March 9, 1971, Continental Flight 25, while approaching to land at Los Angeles International Airport, "produced a noise level of 102 dbA at the City's mobile monitoring station located in the immediate vicinity of 104th and Dixon Streets, in the City of Inglewood . . . ." It is further alleged in said complaint that Continental Flight 25 was "in violation of normal 'bracketing' altitudes as designated by FAA regulations in that its altitude over said station was 694 feet"; that 694 feet "is lower than the normal 'bracketing' altitudes permitted above and below the glide slope;" and that the glide slope altitude "is 800 feet at said station." 56. Prior to instituting said criminal prosecution, no official from the City of Inglewood requested an interpretation or definition from the Federal Aviation Administration as to what constitutes "normal bracketing" as that phrase is used in FAR 91.87 (d). 57. Prior to instituting said criminal prosecution, the City of Inglewood did not file a complaint in writing with the Federal Aviation Administration alleging that Continental Flight No. 25 violated FAA regulations on March 9, 1971. 58. The FAA General Counsel has delegated to each Regional Counsel the authority to interpret FAA regulations within the applicable region. 59. On or about March 19, 1971, the FAA, acting through its Western Regional Counsel, informed defendant Olson that "assuming Continental Flight 25 was at the reported altitude of 694 feet above ground level, it was not in violation of the minimum altitudes prescribed in Federal Aviation Regulation Section 91.87 (d)." 60. On or about April 5, 1971, the FAA Western Regional Counsel informed defendant Olson that the ILS glide slope signal for runway 25L at the City of Inglewood's monitoring station extends from 643 feet above ground level to 1,035 feet and that the pilot is expected to normally bracket between these altitudes in order to establish the proper angle and attitude to assure a safe landing. Again, the FAA Western Regional counsel reported his conclusion to defendant Olson that if Continental Flight 25 was at the reported altitude of 694 feet above ground level, it would have been within the normal bracketing for an ILS approach. 61. On or about April 23, 1971, defendant Olson stated that defendant City of Inglewood disputes the FAA's interpretation and application of the Federal Aviation Regulations establishing minimum altitudes, which regulations are set forth in FAR 91.87 (d). Defendant Olson also indicated that defendant City of Inglewood will enforce Sections 4620 and 4620.1 of the Inglewood Municipal Code by way of criminal proceedings against federally certificated air carriers and federally licensed airmen determined by defendant Olson to have violated said ordinances. Noise Characteristics of Turbojet-Powered Aircraft 62. Manufacturers of the early turbojet aircraft conducted research resulting in the development of noise suppressors to reduce the predominant noise source in those engines, the jet roar. The airlines invested considerable sums in putting these suppressors on their early turbojet aircraft. With the advent of the turbo-fan engine in the early 1960's, some airlines re-equipped their early aircraft with this type of power plant. All later models were purchased with this type of equipment because it was quieter and more economical. Turbofans derive much of their thrust from the front end fan and less from the jet engine core. The ratio of thrust from fan to jet is termed "bypass." 63. The engines for the new wide-bodied Boeing 747, Douglas DC-10 and Lockheed L-1011 are termed high bypass engines. Approximately 75% of the thrust in these engines comes from the fan or moving air, while only 25% of the thrust comes from the jet or combustion process. Although these engines are more than twice as powerful as those on 707s and DC-8s, they make less noise. 64. Governmental agencies such as the Departments of Transportation, Defense, Housing and Urban Development, Health, Education and Welfare and NASA have spent considerable sums on noise research. From fan and compressor studies sponsored by governmental agencies, now techniques for the design of these components have emerged as well as methods for acoustically treating engine areas and nacelles. 65. As of May, 1971, members of the ATA were operating the following types of 4-engine jet aircraft into and out of Los Angeles International Airport: Boeing 747, Boeing 720, Boeing 707, and McDonnell Douglas DC-8. These aircraft comprise approximately 40 percent of the 2,500 jet and propeller-driven aircraft in the United States airline fleet. 66. The engines and appliances used on the jet aircraft operated into and out of LAX by the members of the ATA have been type and production certificated by the Administrator. Any change in design or modification of these engines or appliances would have to receive appropriate certification from the FAA (14 C.F.R. §§ 21.95, 21.97 and 21.303) and would be subject to all of the rules and regulations regarding equipment as are provided by the federal scheme of regulation. 67. On or about December 22, 1970, Randall L. Hurlburt, who is employed as an acoustical engineer by defendant City of Inglewood, reported to the Mayor and City Council of Inglewood on the results of "more than 200 hours measuring aircraft flyovers." Hurlburt's report states that during the month of November, 1970, the 4-engine jet transport aircraft operated by each of the six leading domestic airlines serving Los Angeles produced average noise levels exceeding 92 dbA. Hurlburt's report also states that during said period, some of the 3-engine jet transport aircraft operated by said carriers produced average noise levels in excess of 90 dbA. 68. On or about March 31, 1971, defendant Olson, in a verified petition filed with the Civil Aeronautics Board, stated that "a maximum limit of 90 dbA has been set [by Section 4620 of the Inglewood Municipal Code] but can be applied only to aircraft violating Federal Aviation Regulations. Aircraft approaching Los Angeles International Airport for a landing frequently exceed 100 dbA, a level double the limit set by said ordinance." Los Angeles International Airport as a Part of the National Air Transportation System 69. Los Angeles International Airport is included in the current National Airport Plan promulgated by the Administrator of the FAA pursuant to Section 3 of the Federal Airport Act of 1946. Said Airport has been developed as part of the National Airport Plan for the establishment of a nationwide system of public airports adequate to meet the present and future needs of civil aeronautics in accordance with the standards established by the Administrator of the FAA. 70. Los Angeles International Airport has and is being developed and improved under project grants totalling more than $20 million which have been made or allocated pursuant to Section 4 of the Federal Airport Act of 1946. 71. The aircraft fleets maintained by ATA's members are made up as follows: [2 ELR 20602]
73. LAX is the second busiest commercial airport in the United States, next only to Chicago's O'Hare International Airport. LAX handled 575,503 operations (landings and takeoffs) in fiscal 1970. Further, it is a switchpoint for passengers, mail and cargo into smaller California communities from major cities to the East. It is also a major international airport on the west coast, with connecting flights to Central and South America, the Hawaiian Islands, Alaska, New Zealand, Australia, Japan, Southeast Asia and the smaller islands of the Pacific. 74. In the fiscal year ending June 30, 1970, there were 15,910,398 passengers that originated or terminated flights in interstate or international transportation at LAX. The intrastate and commuter air carrier passengers using LAX during said period would significantly increase the total. 75. More than 200,000 passengers using LAX in interstate or international transportation in fiscal 1970 originated or terminated their trips in the City of Inglewood. The intrastate and commuter air carrier passengers from the City of Inglewood originating or terminating in flights at LAX during said period would significantly increase the 200,000 figure. 76. On a typical recent day, April 25, 1971, the sixteen ATA members authorized by federal certificates to operate at LAX made 414 scheduled landings at LAX, consisting of the following:
77. During the period March 6 to April 2, 1971, 14,098,764 pounds of domestic mail were carried into and out of the World Way Postal Center at LAX by certificated air carriers. During this period, certificated air carriers arriving at LAX delivered a total of 7,084,160 pounds of U.S. mail, which consisted of 3,478,362 pounds of air mail and 3,065,798 pounds of first class mail. In addition, certificated air carriers departing from said Airport transported a total of 7,014,604 pounds of U.S. mail, which consisted of 3,645,823 pounds of air mail and 3,368,781 pounds of first class mail. Irreparable Injury if Inglewood Ordinance Enforced 78. Although there are variations in the noise levels produced by the various 4-engine jet aircraft operated into and out of LAX by the members of the ATA, officials of defendant City of Inglewood who are responsible for enforcement of the ordinances here challenged have stated publicly that the average noise levels of these aircraft, as measured by the City of Inglewood, exceed the 90 bdA limit established by Section 4620. In addition, said officials have stated that some of the 3-engine aircraft so operated exceed the limit of 90 dbA. 79. At present there are no devices certificated by the FAA which could be used by Continental Air Lines and the other members of ATA that operate 4-engine and 3-engine jet aircraft into and out of LAX to modify their aircraft engines so as to reduce the noise levels created when approaching to land at LAX. 80. Noise from jet aircraft, perceived by persons on the ground, varies not only according to airplane type, operating factors (e.g., whether the aircraft is landing, taking off or cruising) and altitude of the aircraft, but also according to gross weight, wind conditions and atmospheric conditions. The latter three factors can cause a difference of eight to mine decibels of noise perceived by persons on the ground. Gross weight, wind conditions and atmospheric conditions are not subject to the control of the airline or the flight crew. Gross weight of the aircraft is affected by the amount of fuel, rate of consumption, number of passengers and weight of mail and cargo. 81. When a pilot is landing a jet aircraft under the direction and control of an FAA air traffic controller at Los Angeles International Airport, the instruments in the aircraft do not show the pilot the number of feet by which he may be deviating from the glide slope. 82. Continental's present aircraft fleet, used in domestic and military contract service, is entirely jet engine equipped. This fleet had the following composition as of May 1971:
84. Continental's principal maintenance base is at LAX. Thus, all the aircraft in Continental's fleet, used in domestic and military contract service also land at and take off from LAX in connection with maintenance operations. 85. Continental Air Lines maintains the variety of types of aircraft in its fleet because of the variety of markets and airports it serves and because each type of aircraft is economically suited to certain service and unsuited to other service. 86. Boeing 747s are wide-bodied, four-engine, long-range aircraft particularly suited to serving long, non-stop routes with large passenger volumes. 87. Boeing 720s and 707s are early generation, four-engine, long-range aircraft and are suited to long, non-stop routes with large passenger volumes. 88. Continental is compelled by its route structure to operate Boeing 707, 720B and 747aircraft into and out of LAX. 89. Any conclusion of law hereinafter recited which should be deemed a finding of fact is hereby adopted as such. 1. This Court has jurisdiction over the subject matter of Civil No. 71-1153-CC by virtue of 28 U.S.C. § 1331(a) and 28 U.S.C. § 1337; jurisdiction over the subject matter of Civil No. 71-1632-CC by virtue of 28 U.S.C. § 1345; and jurisdiction over the parties. 2. This action arises under the Federal Aviation Act of 1968, 72 Stat. 737 (1958), as amended, 49 U.S.C. §§ 1301-1542 (1970 ed.); the Department of Transportation Act, 80 Stat. 931 (1966), 49 U.S.C. §§ 1651-1659 (1970 ed.); the Airport and Airway Development Act of 1970, 84 Stat. 219 (1970), 49 U.S.C. §§ 1701-1742 (1970 ed.); the Constitution of the United States, Article VI, Clause 2 (the Supremacy Clause). The matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs. The allegations of the respective complaints raise issues constituting an actual controversy concerning which the Court will make a declaration of rights. 3. All defendants reside in, and the claim arose in, this Judicial District. 4. The Federal Aviation Act of 1958, 72 Stat. 737 (1958), as amended, 49 U.S.C. §§ 1301-1542 (hereinafter the "Act"), creates a comprehensive scheme to deal with air commerce under the administrative auspices of the Federal Aviation Administration [2 ELR 20603] ("FAA") and the Civil Aeronautics Board ("CAB"). The FAA is headed by an Administrator who is made responsible under the Act for the exercise of all powers and the discharge of all duties of the FAA. 5. The overall design of Congress in enacting the Federal Aviation Act of 1958 was to centralize in a single authority the power to establish rules and regulations for the safe and efficient use of the nation's airspace. The Act vests in a single Administrator plenary authority for all aspects of airspace management and specifically charges the Administrator with the dual responsibility of insuring the safety of aircraft and the efficient utilization of the navigable airspace. The comprehensive character of the 1958 Act shows that Congress intended to provide the Administrator with the tools necessary to exercise his "plenary" authority. 6. Section 1108 of the Act, 49 U.S.C. § 1508, declares that the United States possesses and exercises complete and exclusive national sovereignty in the navigable airspace over the country, and Section 104, 49 U.S.C. § 1304, grants to the citizens of the United States a public right of freedom of transit in this navigable airspace. 7. The CAB issues Certificates of Public Convenience and Necessity to air carriers, without which they cannot engage in air transportation. 49 U.S.C. § 1371. Each federally certificated air carrier is required to provide safe and adequate service in connection with the interstate and overseas air routes which it is authorized to serve. 49 U.S.C. § 1374. 8. The Administrator of the FAA has power to prescribe air traffic rules and develop plans and policy for the use of the navigable airspace. 49 U.S.C. § 1348. He also issues airman, aircraft, air carrier and airport operating certificates. 49 U.S.C. §§ 1422-24, 1432. 9. Congress has provided a comprehensive scheme for enforcement of the Federal Aviation Act of 1958 and the regulations issued thereunder. (a) By virtue of Section 901, 49 U.S.C. § 1471, any person violating air traffic rules and regulations governing the flight of aircraft, which rules and regulations are issued under Title III of the Act, would be subject to civil penalties. Although the Act contains criminal penalties as well, Congress has expressly exempted from these penalties any violation of air traffic rules and regulations governing the flight of aircraft. (49 U.S.C. § 1472.) (b) The Administrator of the FAA is charged by Congress with enforcing the regulations issued under the Act, 49 U.S.C. § 1354(a), and he has established procedures to regulate FAA investigations and activities in connection with administrative and legal enforcement actions. (14 C.F.R. Part 13.) (c) Various procedural safeguards for the protection of the regulated person are set forth in the Act. After notice and hearing, the Administrator may order compliance with any provision of the Act or any regulation found to have been violated, 49 U.S.C. § 1482(c), or may suspend or revoke any certificate issued under the Act. (49 U.S.C. § 1429.) Such an order may be appealed to the National Transportation Safety Board, 49 U.S.C. §§ 1429, 1655(d), and, thereafter, to the Courts of Appeals and upon certification or certiorari to the Supreme Court of the United States. (49 U.S.C. § 1486.) (d) Under Section 1007 of the Act, 49 U.S.C. § 1487, the Administrator of the FAA may apply to the United States District Court to enjoin the violation of any provision of the Act or any rule, regulation, requirement or order issued thereunder. 10. The decision of the United States Court of Appeals for the Ninth Circuit in Lockheed Air Terminal, Inc. v. City of Burbank, 457 F.2d 667 (9th Cir. 1972), appeal docketed, No. 71-1637, U.S., June 17, 1972, establishes the law of this circuit with respect to federal preemption of aircraft noise regulation, and this Court is bound to follow that decision unless and until it may be reversed. 11. Section 611, 49 U.S.C. § 1431, which was added to the Federal Aviation Act in July 1968, specifically provides for responsibility of the FAA Administrator with respect to ecological and environmental problems. This section gives the Administrator power to deal with noise that is offensive to persons on the ground, including the noise created by low-flying aircraft, take-offs and landings, and the noise created by aircraft on the gound at airports. Lockheed Air Terminal, Inc. v. City of Burbank, supra. 12. The pervasiveness of federal regulation in the field of air commerce, the intensity of the national interest in this regulation, and the nature of air commerce itself require the unavoidable conclusion that State and local regulation in that area has been preempted. A state or local government such as Inglewood cannot use its police power to attempt to regulate this field. Lockheed Air Terminal, Inc. v. City of Burbank, supra; United States v. City of New Haven, 447 F.2d 972 (2d Cir. 1971); Allegheny Airlines, Inc. v. Village of Cedarhurst, 238 F.2d 812 (2d Cir. 1956); American Airlines, Inc. v. City of Audubon Park, Kentucky, 297 F. Supp. 207 (W.D.Ky. 1968), aff'd, 407 F.2d 1306 (6th Cir.), cert. denied, 396 U.S. 845 (1969); American Airlines, Inc. v. Town of Hempstead, 272 F. Supp. 226 (E.D.N.Y., 1967), aff'd, 398 F.2d 369 (2d Cir. 1968), cert. denied, 393 U.S. 1017 (1969). 13. Pursuant to the federal statutory scheme, the Administrator of the FAA must balance considerations of safety, efficiency, technological progress, common defense and environmental protection in the process of formulating rules and regulations with respect to the use of the nation's airspace. There is no single objective to with he must address himself, but a complex of goals which may individually lobby for inconsistent results in a given circumstance. Congress has vested the federal agency with the responsibility and concomitant authority to resolve the proper balance among the multiple purposes. If State and local government were to be allowed to exercise supplementary power in this area, they might upset the delicate balance struck by the FAA under the aegis of federal law. Lockheed Air Terminal, Inc. v. City of Burbank, supra. 14. The general commitment of environmental problems to local regulation under the Environmental Quality Improvement Act of 1970, 42 U.S.C. § 4371, et seq., does not overcome the preemptive nature of Congress' particular commitment of air commerce problems to the federal domain. Northern States Power Co. v. Minnesota, 447 F.2d 1143 (8th Cir. 1971), aff'd, CCH U.S. Sup. Ct. Bull. B1606 (April 3, 1972); Lockheed Air Terminal, Inc. v. City of Burbank, supra. 15. In connection with the prosecution of Case No. M-66090 pending in the Inglewood Judicial District Municipal Court, defendants have asserted the power to interpret federal aviation regulations in a manner contrary to the interpretation rendered by the FAA. 16. Enforcement of the criminal sanctions of the Inglewood ordinance would conflict with the federal scheme of investigating and enforcing alleged violations of federal aviation regulations. 17. The Inglewood ordinance conflicts with federal air traffic rules and regulations governing the flight of aircraft, interferes with the operation of the national air transportation system, and stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. 18. Enforcement of the Inglewood ordinance would compromise the ability of plaintiff Continental Air Lines and other federally certificated air carriers to render adequate service at LAX as they are required to do under their respective Certificates of Public Convenience and Necessity. 19. Defendants the City of Inglewood and Donald E. Olson are threatening to enforce Sections 4620 and 4620.1 of the Inglewood Municipal Code against plaintiffs and will continue to do so unless restrained by order of this Court. The threat presented by the Inglewood ordinance to plaintiffs' federally protected rights cannot be eliminated by the defense against a single criminal prosecution in the state court. If a decree permanently enjoining said enforcement is not granted, plaintiffs will suffer great and immediate irreparable injury. 20. There is no genuine issue as to any material fact and plaintiffs are entitled to judgment as a matter of law. 21. Plaintiffs are entitled to judgment on their respective complaints for declaratory relief that Sections 4620 and 4620.1 of the Inglewood Municipal Code, and each and every part and section thereof, are unconstitutional, illegal and void under the Surpemacy [2 ELR 20604] Clause of the United States Constitution. 22. Plaintiffs are entitled to a decree that defendants the City of Inglewood and Donald E. Olson and, as well, their agents or any person acting on their behalf, at their direction, or under their control, and each of them, be permanently enjoined and restrained from (a) enforcing or attempting to enforce or causing to be enforced Sections 4620 and 4620.1 of the Inglewood Municipal Code against plaintiffs, or any of them, and (b) prosecuting or attempting to prosecute Case No. M-66090 filed in the Inglewood Judicial District Municipal Court. 23. Plaintiffs are entitled to recover their costs of suit herein incurred. 24. Any finding of fact which should be deemed a conclusion of law is hereby adopted as such. 2 ELR 20596 | Environmental Law Reporter | copyright © 1972 | All rights reserved |