ILLINOIS POLLUTION CONTROL BOARD
January 26, 1987
IN THE MATTER OF:
PUBLIC AIRPORT NOISE
)
REGULATIONS,
35
ILL. ADM. CODE
)
RES 87—i
PART 904
(DOCKET P77—4)
RESOLUTION OF THE BOARD
(by J.
Marlin):
In its Proposed Opinion and Order
of April
10,
1986,
the
Board proposed
to adopt regulations limiting noise emissions from
public airports.
These proposed regulations were published
in 10
Ill.
Beg.
6907,
April
25, 1986.
Two public hearings were held on
October
10
arid
20,
1986,
at which testimony and exhibits were
presented, and 40 written comments were received during the
comment period;
this comment period extended
through December
15,
1986 pursuant to written requests from various hearing
participants.
During
this first notice period, the City of Chicago,
in
Public Comment 167, brought to the Board’s attention
a decision
which was rendered
in October,
1986 by the Illinois Appellate
Court
for the Second District.
Bryski
v. City of Chicago, No.
2—
85—0140, October
15,
1986.
Application has been made to the
Illinois Supreme Court for leave to appeal Bryski
v.
City of
Chicago, No. 64397.
This application
is currently pending before
the Supreme Court;
Board
staff has been advised by the Court
Clerk that decision
is not expected prior
to the first week of
February, 1987.
In
its Proposed Opinion of April
10,
1986, the Board
had
found that “neither the supremacy nor the interstate commerce
clause of the United States Constitution preempts the Board from
regulating airport noise
in the manner suggested by the Attorney
General”
Id.
at
25.
This determination was reached after
an
analysis of relevant federal case law,
the primary cases upon
which the Board had relied being City of Burbank
v.
Lockheed,
411
U.S.
624
(1973);
San Diego Unified Port District v. Gianturco,
651 F.2d 1306
(9th Cir.
1981);
and Air Transport Assn.
v.
Crotti,
389
F.
Supp.
58
(N.D. Cal 1975).
The Board placed considerable
reliance on the “proprietor’s exception”
to the otherwise
total
federal preemption of airport noise,
which exception was
referenced
in footnote
14
of the Burbank Opinion, 411 U.S.635
n.l4 and discussed
in Crotti
and Gianturco.
The Board’s proposed
rules were crafted
to require governmental entities who are
airport proprietors
to exert all measures within their power,
and
not otherwise pre—empted
by federal
law,
to abate
the noise
generated by their
airport facilities.
75-168
—2—
As of the writing
of the Board’s April, 1986 Proposed
Opinion, no Illinois court decision had squarely addressed the
proprietor’s exception.
The Illinois Appellate Court for the
First District had three times addressed the pre—emption issue as
it related
to attempts by local governments
to impose controls
affecting airports of which they were not the proprietors.
LaSalle Natl. Bank v. County of Cook,
34
Ill. App.
3d 264,
340
N.E.2d 79
(1st Dist.
1975)
(upholding ordinance limiting building
heights within two miles of designated
airports); County of Cook
v.
Priester,
22 Ill.
App. 3d 964,
318 N.E.2d 327
(1st Dist. 1974)
(invalidating zoning ordiance imposing aircraft weight
limitations),
aff’d. without reaching supremacy clause issue,
62
Ill.2d 357, 342 N.E.2d 41
(1976);
and Village of Bensenville v.
City of Chicago
16
Ill.
App. 3d 733,
306 N.E.2d 562
(1st Dist.
1973).
In
Bensenville, several communities surrounding O’Hare
Airport alleged that aircraft operations
from the airport emitted
noise
and
air pollution over
the communities so
as to constitute
a public nuisance.
Bensenville therefore sought an injunction
prohibiting Chicago from 1)
expanding
the airport
in such
a
manner
as
to expose the communities
to higher noise levels,
2)
allowing
the airport’s facilities
to be utilized by any aircraft
which emit noise beyond
a certain level and 3) permitting any
aircraft which produce noise
in excess
of
a certain level
to
utilize airport facilities unless such aircraft was
in use prior
to the date of the requested relief.
Remarking that the “real thrust” of the complaint was to
prohibit aircraft while
in flight over the communities from
producing noise
in excess of prescribed limits,
the court found
the matter before
it was controlled
by the Burbank decision
(which was then some six months old).
After extensively quoting
that decision, the court held that under the Federal Aviation
Act,
as amended by the Noise Control Act of
1972,
the federal
government had,
“so occupied the regulation of aircraft noise and
air pollution as
to preempt any state
or local action
in that
field.”
306 N.E.2d
at 566.
The court did not quote
or otherwise
consider footnote 14.
One year
later,
in Priester, the court held that ~the level
of federal regulation of air commerce by the Federal Aviation
Agency
(sic)
is so pervasive as
to deprive other governmental
bodies of the power
to act
to
regulate airport noise~
318
N.E.2d at
331.
However, the court specifically distinguished
Airport Owners
and Pilots Assn.
v.
Port Authority of New York,
305
F. Supp.
93
(E.D.N.Y.
1969), which was cited by the County
for the proposition
that “a local authority may make regulations
which have the effect of curtailing activities not
forbidden by
federal regulation”;
the court stated that the case was not
applicable “because
there the power sustained was not the result
of operation of police powers, but of
a proprietary power
of the
75.169
-.3—
Port Authority”.
318 N.E.2d
at
331.
The court implied, although
it did not explicitly give, recognition of
a proprietor’s
exception.
As aforementioned,
in LaSalle National Bank the Supreme
Court did
not reach the appellate court’s handling of the
preemption/proprietor’s exception issue,
as this was not
necessary
to disposition of the case.
In its decision, the
appellate court noted
that in Priester
it had held that
“the
federal government had essentially pre—empted the field of air
commerce which was affected by the county’s weight restriction”
there at issue, but went on
to state that Priester did not apply
to the building height ordinance at issue
in LaSalle.
340 N.E.2d
at
87.
Thus,
following
sound principles of case construction and
stare decisis,*
in the absence of controlling
Illinois case
decisions
to the contrary,
the Board was free to construe the
Burbank proprietor’s exception in light of the rationale
expressed
in various non—binding
federal precedents argued
to
the
*As defined and described
in Black’s Law Dictionary 1577—1578
(rev.
4th ed. 1968),
stare decisis
is
a legal
principle requiring
courts, and administrative agencies, such as the Board:
To
abide
by,
or
adhere
to,
decided
cases... .Doctrine
that, when court has once laid down
a principle of law
as
applicable
to
a
certain
state
of
facts,
it
will
adhere
to
that principle,
and
apply
it
to
all
future
cases,
where
facts
are substantially the
same... .Under
doctrine
a
deliberate
or
solemn decision of court made
after argument on question of law fairly arising
in the
case,
and
necessary
to
its
determination,
is
an
authority,
or
binding precedent
in
the
same
court,
or
in
other
courts
of
equal
or
lower
rank
in
subsequent
cases where
the very point is again
in controversy....
The
doctrine
is
limited
to
actual
determinations
in
respect
to litigated and necessarily decided questions,
and
is
not
applicable
to
dicta
or
obiter
dicta.
citations
omitted.
Obiter dicta
is defined
as:
remarksJ
made,
or
opinions
expressed, by
a judge
in
his
decision,
upon
a
cause,
‘by
the
way’,
that
is,
incidentally or
collaterally, and not directly upon the
question
before
him
or
upon
a
point
not
necessarily
involved
in
the determination
of
the
cause,
or. intro-
duced
by
way
of
illustration,
or
analogy
or
argument.
Id.
at
1222.
75-170
—4--
Board by the various participants in this proceeding.
However,
in the Bryski decision, the Second District Appellate Court
specifically addressed the “proprietor’s exception”
issue.
Bryski
involved a class action suit brought
in 1983 by
various residents of Du Page County against the City of Chicago,
and six airlines which lease terminals at O’Hare
for money
damages resulting from noise, vibration and air pollution.
The
circuit court dismissed plaintiffs’
inverse condemnation count
without prejudice, but dismissed with prejudice seven other
counts which asserted various other
legal theories for recovery.
On appeal, the plaintiff—citizens argued five issues:
(1)
Federal law does not preempt nuisance or
trespass claims against
airport proprietors,
(2)
the Local Governmental and Governmental
Employees Tort Immunity Act
(Ill. Rev.
Stat.
1983,
ch.
15,
par.
1—101,
et. seq.)
does not bar recovery from the City,
(3)
the
airlines are joint venturers or co—proprietors with the City
in
the operation of O’Hare,
(4) plaintiffs’
complaint adequately
stated
a cause of action for trespass and nuisance, and
(5)
the
circuit court
erred
in dismissing plaintiffs’
counts requesting
a
mandatory injunction ordering the City
to issue obligations to
cover
the damages sought.
The Appellate Court for the Second
District addressed the first issue only,
finding that federal law
does preempt nuisance and trespass claims against airport
proprietors, leaving the action
for
inverse condemnation as the
plaintiffs’
only proper
remedy.
Slip op.
at 15—16.
In reaching this result,
the Second District analyzed the
various major airport noise cases
the Board discussed or
mentioned in its proposed airport noise opinion,
including the
U.S. Supreme Court’s decisions in Burbank and Griggs
v.
Allegheny,
369 U.S. 84
(1962), the Seventh Circuit’s decision
in
Luedtke v.
Milwaukee,
521 F.2d 387
(7th Cir.
1975),
the
California District Court’s decision
in Crotti, and the Illinois
Appellate Court’s decisions
in Priester and Bensenville.
The key
sentences
in the Bryski Opinion are
as follows:
“Despite
plaintiffs’
arguments
to
the
contrary,
footnote
14
to
the
Burbank
decision
is
not
a
positive
recognition
of
a
“proprietorship
exception,”
but merely
an
expression of
the
U.S.
Supreme
court’s
refusal
to
consider
the
issue
at
that time.
We
disagree
with
those
cases
from
other
jurisdictions
which
hold
that
airport proprietors
may
be
held
liable
for
nuisance
and
trespass
and
adopt
the
reasoning
of
the United
States
Court
of
Appeals
for
the
Seventh
Circuit,
as
expressed
in
Luedtke
v.
County of Milwaukee
(7th Cir. 1975),
521
F.2d
387,
which
stated
that
the
proprietor
of
a
75-171
—5—
county—owned
airport
and
federally
certified
airlines operating out of that airport could not be
charged
with negligence
or
creating
a nuisance
to
the
extent
they
conformed
with
Federal
laws
and
regulations.
This holding
fully
incorporates
the
Supreme
Court’s
ruling
in
Burbank
that
airspace
management has been federally preempted.
We find support
for our conclusion in Priester
and
Bensenville
citations
omitted,
in
which
the
courts
noted
the
pervasive
nature
of
Federal
regulation
over
air
commerce.
...Plaintiffs’
current
actions
are
based
solely
on
the
inflight
operation
of
aircraft
arriving
at
and
departing
from
O’Hare
in
full
compliance
with
Federal
regulations.
Plaintiffs
do
not
predicate
their
complaint on
ground
noise
or
pollution
and
do
not
allege
in
their
complaint
that
the defendant
city
or
airlines
have
violated
Federal
regulations
in
the operation of the airport.
As
plaintiffs’
claims
in nuisance and trespass are
based
completely
upon
the
inflight
operation
of
aircraft,
they
necessarily
interfere
with
the
Federal
regulation
of
airspace management
and
are
preempted
by
Federal
law
under
Burbank.
We
hold
the
circuit
court
correctly
dismissed
plaintiffs’
complaint against the city,
as O’Hare’s proprietor,
and
the
airlines,
as
co—proprietors,
for
nuisance
and tresp~ss based
upon
the
noise,
vibrations
and
pollution
generated
by
O’Hare
air
traffic.”
Slip
op.
at 15—16
The Board notes that
in crafting
its proposed
airport noise
regulations, the Board has recognized
the ability of the Federal
Aviation Administration
(FAA)
to veto various noise abatement
strategies which do not deal solely with ground noise.
Examples
of such strategies, which are subject
to FAA veto,
are airport
curfews and changes
in approach or
take—off flight paths.
Implementation of these strategies
in a particular situation
could adversely affect air safety or the free flow of
interstate
commerce, interests which are within the FAA’s jurisdiction.
It
was not the Board’s intent
to “preempt” the FAA’s jurisdiction
in
these areas,
but rather
to compel
the airport proprietor
to
interact with the FAA
to determine the limits of what can and
cannot be safely and practically done
to abate
the effects of the
noise
from airborne jets at specific airports.
The incentive
for
such interaction would
be either
to achieve compliance with the
statewide noise standard,
or
to amass sufficient information
to
persuade the Board
to set an
“adjusted standard”
for
a particular
airport conditioned
on that airport’s continued implementation of
all
in—flight abatement measures permitted by the
FAA,
as well
as
75.172
—6—
controls of noise generated on the ground.
To the extent that
Bryski could be read as precluding imposition by the state of any
duties,
including consultation with the FAA,
on the airport
proprietor relating to in—flight noise beyond payment of an
inverse condemnation award,
the major component of the Board’s
proposed rules might be prohibited.
The Attorney General,
in P.C.
176, asserts that Bryski
is
“consistent with the Board’s stated legal basis for the proposed
regulatory scheme”.
However, the Board believes that the
sweeping language of the Second District Bryski decision could be
quite readily interpreted
under
the principle of stare decisis as
precluding the Board from proceeding with those portions of the
proposed Airport Noise Regulations which compel airport
proprietors
to consider
implementing measures
to abate inflight
noise apart from those required by the federal government.
Such
an interpretation would require the Board to determine whether or
how to proceed with the balance of the proposal.
It
is the opinion of the Board that the potential statewide
regulatory ramifications occasioned by the language of the Bryski
decision should be brought
to the attention of the Illinois
Supreme Court,
so that it may make
a fully informed decision as
to whether the Bryski decision merits review.
The Board
accordingly petitions its attorney,
the Attorney General,
to take
all appropriate
steps
to “intervene” as
a “friend of the court”
on the Board’s behalf in this matter,
and
to advocate the Board’s
interest
in a fully informed Supreme Court decision.
The Board. notes that any resolution of this basic legal
issue by the Supreme Court at this point
in the R77—4 proceeding
could
result
in
substantial economies of time and resources
for
all concerned.
The Board recognizes the inevitability of appeal
of its actions
in this docket, and
further recognizes that the
appellate process could be lengthy.
If the Bryski decision
is
narrowed, even
if appeals are not avoided,
the scope
of such
appeals could be greatly reduced; the earlier
a decision
is
reached, the earlier any lawful noise abatement regulations can
be enforced by the state.
Finally, until any and all appellate review of Bryski
is
completed,
the Board will take no further action
in this docket.
Given the high degree of public
interest in this proceeding,
the Clerk
is directed
to cause service of copies of this
resolution on all 200—odd persons on the R77—4
notice
list,
for
the purposes of advising them of the status of this matter.
IT
IS SO RESOLVED.
J.
Anderson concurred.
J.
T.
Meyer voted present.
75-173
—7—
I,
Dorothy
M.
Gunn, Clerk of the Illinois Pollution Control
Board,
hereby certify
at the above Resolution was adopted on
the
?~~-
day of
~,
,
1987 by
a vote
of
...~—
C)
7
Dorothy M.
G(inn, Clerk
Illinois Pollution Control Board
75.174