Appellees sought an injunction against enforcement of a Burbank
city ordinance placing an 11 p.m. to 7 a.m. curfew on jet flights
from the Hollywood-Burbank Airport. The District Court found the
ordinance unconstitutional on Supremacy Clause and Commerce Clause
grounds, and the Court of Appeals affirmed on the basis of the
Supremacy Clause, with respect to both preemption and conflict.
Held: In light of the pervasive nature of the scheme of
federal regulation of aircraft noise, as reaffirmed and reinforced
by the Noise Control Act of 1972, the Federal Aviation
Administration, now in conjunction with the Environmental
Protection Agency, has full control over aircraft noise, preempting
state and local control. Pp.
411 U. S.
626-640.
457 F.2d 667, affirmed.
DOUGLAS, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, BLACKMUN, and POWELL, JJ., joined.
REHNQUIST, J., filed a dissenting opinion, in which STEWART, WHITE,
and MARSHALL, JJ., joined,
post, p.
411 U. S.
640.
Page 411 U. S. 625
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
The Court, in
Cooley v. Board of
Wardens, 12 How. 299, first stated the rule of
preemption 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 31.
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
Page 411 U. S. 626
to take off from that airport during such periods. [
Footnote 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 preemption and as respects
conflict. [
Footnote 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 preemption.
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
Page 411 U. S. 627
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. . . ." [
Footnote 3]
The Solicitor General, though arguing against preemption,
concedes that, as respects "airspace management," there is
preemption. 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
Page 411 U. S. 628
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,
[
Footnote 4]
i.e., by
July, 1973. The 1972 Act, by amending § 611 of the Federal
Page 411 U. S. 629
Aviation Act, [
Footnote 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. [
Footnote 6]"
Section 611(b)(2),
Page 411 U. S. 630
as amended, 86 Stat. 1239, 49 U.S.C. § 1431(b)(2) (170 ed.,
Supp. II), provides that future certificates for aircraft
operations shall not issue unless the new aircraft noise
requirements are met. [
Footnote
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
Page 411 U. S. 631
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, [
Footnote 8] 83 Stat. 853, 42 U.S.C. § 4332(2)(c),
Page 411 U. S. 632
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 FAA to act at large, but provided in §
611(d), as amended, particularized standards:
"In prescribing and amending standards and regulations under
this section, the FAA 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
Page 411 U. S. 633
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 FAA, now in
conjunction with EPA, has full control over aircraft noise,
preempting state and local control.
There is, to be sure, no express provision of preemption in the
1972 Act. That, however, is not decisive. As we stated in
Rice
v. Santa Fe Elevator Corp., 331 U. S. 218,
331 U. S.
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
preemption. As Mr. Justice Jackson stated, concurring in
Northwest Airlines, Inc. v. Minnesota, 322 U.
S. 292,
322 U. S.
303:
"Federal control is intensive and exclusive. Planes do not
wander about in the sky like vagrant clouds.
Page 411 U. S. 634
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
preemption rule. The House Report stated: [
Footnote 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: [
Footnote 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,
Page 411 U. S. 635
rule, or regulation is consistent with the highest degree of
safety in air commerce or air transportation in the public
interest."
82 Stat. 39. When the legislation which added this section to
the Federal Aviation Act [
Footnote 11] was considered at Senate hearings, Senator
Monroney (the author of the 1953 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." [
Footnote
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, [
Footnote 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 government,"
and the Report concurred in the views set forth by the Secretary
in his letter. [
Footnote
14]
Page 411 U. S. 636
The Senate version of the 1972 Act as it passed the Senate
contained an express preemption section. [
Footnote 15] But the Senate version never was
presented to the House. Instead, the Senate passed, with
amendments, the House version; [
Footnote 16] the House, also with amendments, then
concurred in the Senate amendments. [
Footnote 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: [
Footnote 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
Page 411 U. S. 637
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 clear
[
Footnote 19] 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
Page 411 U. S. 638
interstate commerce and can be effectively regulated only at the
federal level. [
Footnote
20]"
Our prior cases on preemption 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. Davidovitz, 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. [
Footnote 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
Page 411 U. S. 639
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. [
Footnote 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
Page 411 U. S. 640
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.
[
Footnote 1]
Burbank Municipal Code § 20 32.1. The ordinance provides an
exception for "emergency" flights approved by the City Police
Department.
[
Footnote 2]
The Court of Appeals held that the Burbank ordinance conflicted
with the runway preference order, BUR 7100.5B, issued by the FAA
Chief of the Airport Traffic Control Tower at the Hollywood-Burbank
Airport. The order stated that
"[p]rocedures established for the Hollywood-Burbank airport are
designed to reduce community exposure to noise to the lowest
practicable minimum. . . ."
The Court of Appeals concluded that the ordinance
"interferes with the balance set by the FAA among the interests
with which it is empowered to deal, and frustrates the full
accomplishment of the goals of Congress."
457 F.2d 667, 676. In view of our disposition of this appeal
under the doctrine of preemption, we need not reach this
question.
[
Footnote 3]
Section 307 provides in relevant part as follows:
"(a) The Administrator is authorized and directed to develop
plans for and formulate policy with respect to the use of the
navigable airspace, and assign by rule, regulation, or order the
use of the navigable airspace under such terms, conditions, and
limitations as he may deem necessary in order to insure the safety
of aircraft and the efficient utilization of such airspace. . .
."
"
* * * *"
"(c) The Administrator is further authorized and directed to
prescribe air traffic rules and regulations governing the flight of
aircraft, for the navigation, protection, and identification of
aircraft, for the protection of persons and property on the ground,
and for the efficient utilization of the navigable airspace,
including rules as to safe altitudes of flight and rules for the
prevention of collision between aircraft, between aircraft and land
or water vehicles, and between aircraft and airborne objects."
[
Footnote 4]
Section 7(a) provides:
"The Administrator, after consultation with appropriate Federal,
State, and local agencies and interested persons, shall conduct a
study of the (1) adequacy of Federal Aviation Administration flight
and operational noise controls; (2) adequacy of noise emission
standards on new and existing aircraft, together with
recommendations on the retrofitting and phase-out of existing
aircraft; (3) implications of identifying and achieving levels of
cumulative noise exposure around airports; and (4) additional
measures available to airport operators and local governments to
control aircraft noise. He shall report on such study to the
Committee on Interstate and Foreign Commerce of the House of
Representatives and the Committees on Commerce and Public Works of
the Senate within nine months after the date of the enactment of
this Act."
[
Footnote 5]
Section 611 of the Federal Aviation Act, 49 U.S.C. § 1431, was
added in July, 1968. Act of July 21, 1968, Pub.L. 90-411, 82 Stat.
395. Prior to amendment by the 1972 Act, it provided in part that
the Administrator,
"[i]n order to afford present and future relief and protection
to the public from unnecessary aircraft noise and sonic boom, . . .
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."
49 U.S.C. § 1431(a).
[
Footnote 6]
Section 611(b)(1), as amended, reads:
"In order to afford present and future relief and protection to
the public health and welfare from aircraft noise and sonic boom,
the FAA, after consultation with the Secretary of Transportation
and with EPA, shall prescribe and amend standards for the
measurement of aircraft noise and sonic boom and shall prescribe
and amend such regulations as the FAA may find necessary to 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. No exemption with respect to
any standard or regulation under this section may be granted under
any provision of this Act unless the FAA shall have consulted with
EPA before such exemption is granted, except that, if the FAA
determines that safety in air commerce or air transportation
requires that such an exemption be granted before EPA can be
consulted, the FAA shall consult with EPA as soon as practicable
after the exemption is granted."
[
Footnote 7]
Subsection (b)(2) provides:
"The FAA shall not issue an original type certificate under
section 603(a) of this Act for any aircraft for which substantial
noise abatement can be achieved by prescribing standards and
regulations in accordance with this section, unless he shall have
prescribed standards and regulations in accordance with this
section which apply to such aircraft and which protect the public
from aircraft noise and sonic boom, consistent with the
considerations listed in subsection (d)."
[
Footnote 8]
Section 102 reads in part as follows:
"The Congress authorizes and directs that, to the fullest extent
possible: (1) the policies, regulations, and public laws of the
United States shall be interpreted and administered in accordance
with the policies set forth in this chapter, and (2) all agencies
of the Federal Government shall -- . . . (C) include in every
recommendation or report on proposals for legislation and other
major Federal actions significantly affecting the quality of the
human environment, a detailed statement by the responsible official
on -- (i) the environmental impact of the proposed action, (ii) any
adverse environmental effects which cannot be avoided should the
proposal be implemented, (iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's
environment and the maintenance and enhancement of long-term
productivity, and (v) any irreversible and irretrievable
commitments of resources which would be involved in the proposed
action should it be implemented. Prior to making any detailed
statement, the responsible Federal official shall consult with and
obtain the comments of any Federal agency which has jurisdiction by
law or special expertise with respect to any environmental impact
involved. Copies of such statement and the comments and views of
the appropriate Federal, State, and local agencies, which are
authorized to develop and enforce environmental standards, shall be
made available to the President, the Council on Environmental
Quality and to the public as provided by section 552 of Title 5,
and shall accompany the proposal through the existing agency review
processes."
Section 611(c)(3) of the Federal Aviation Act, as amended,
provides that, if FAA files no statement under § 102(2)(C) of the
National Environmental Policy Act,
"then EPA may request the FAA to file a supplemental report,
which shall be published in the Federal Register within such a
period as EPA may specify (but such time specified shall not be
less than ninety days from the date the request was made), and
which shall contain a comparison of (A) the environmental effects
(including those which cannot be avoided) of the action actually
taken by the FAA in response to EPA's proposed regulations, and (b)
EPA's proposed regulations."
[
Footnote 9]
H.R.Rep. No. 92-842, p. 10.
[
Footnote 10]
S.Rep. No. 92-1160, pp. 10-11.
[
Footnote 11]
See n 5,
supra.
[
Footnote 12]
Hearing before the Aviation Subcommittee of the Senate Committee
on Commerce on S. 707 and H.R. 3400, Aircraft Noise Abatement
Regulation, 90th Cong., 2d Sess., 29.
[
Footnote 13]
S.Rep. No. 1353, 90th Cong., 2d Sess., 6.
[
Footnote 14]
The letter from the Secretary of Transportation also expressed
the view that
"the proposed legislation will not affect the rights of a State
or local public agency, as the proprietor of an airport, from
issuing regulations or establishing requirements as to the
permissible level of noise which can be created by aircraft using
the airport. Airport owners,
acting a proprietors, can
presently deny the use of their airports to aircraft on the basis
of noise considerations so long as such exclusion is
nondiscriminatory."
(Emphasis added.) This portion as well was quoted with approval
in the Senate Report.
Ibid.
Appellants and the Solicitor General submit that this indicates
that a municipality with jurisdiction over an airport has the power
to impose a curfew on the airport, notwithstanding federal
responsibility in the area. But we are concerned here not with an
ordinance imposed by the City of Burbank as "proprietor" of the
airport, but with the exercise of police power. While the
Hollywood-Burbank Airport may be the only major airport which is
privately owned, many airports are owned by one municipality, yet
physically located in another. For example, the principal airport
serving Cincinnati is located in Kentucky. Thus, authority that a
municipality may have as a landlord is not necessarily congruent
with its police power. We do not consider here what limits, if any,
apply to a municipality as a proprietor.
[
Footnote 15]
118 Cong.Rec. 35868.
[
Footnote 16]
Id. at 35886.
[
Footnote 17]
Id. at 37075.
[
Footnote 18]
Id. at 37083.
[
Footnote 19]
Id. at 37317.
[
Footnote 20]
8 Weekly Comp. Pres.Docs. 1582, 1583 (Oct. 28, 1972).
[
Footnote 21]
The Administrator has adopted regulations prescribing noise
standards which must be met as a condition to type certification
for all new subsonic turbojet-powered aircraft. 14 CFR pt. 36. On
January 30, 1973, FAA gave advance notice of proposed rulemaking
for the control of fleet noise levels (FNL) of airplanes operating
in interstate commerce. 38 Fed.Reg. 2769. (The regulations would
not pertain to carriers also operating in foreign commerce). The
proposed rules are designed to limit FNL prior to July 1, 1978,
when the covered aircraft become subject to the requirements of 14
CFR pt. 36.
The FNL would be determined as a function of the takeoff and
approach noise levels of each airplane in the fleet and the number
of takeoffs and landings of the fleet. Until July 1, 1976, the
cumulative noise level of any fleet subject to regulation could not
exceed the FNL during the previous 90-day base period. In 1976,
each fleet would be required to reduce its FNL by 50% of the
difference between the original base-period level and the level
ultimately required by 14 CFR pt. 36.
[
Footnote 22]
In order to insure efficient and safe use of the navigable air
space, FAA uses centralized "flow control," regulating the number
of aircraft that will be accepted in a given area and restricting
altitudes and routes that may be flown. Flow control has resulted
in the Los Angeles Air Route Traffic Control Center's holding
aircraft on the ground at the Hollywood-Burbank Airport.
Prior to April, 1970, 21 regional Air Route Traffic Control
Centers exercised independent control over traffic flow in their
areas. In April, 1970, FAA established a Central Flow Facility to
coordinate flow control throughout the Air Traffic Control system.
This change was necessitated because no regional center "had enough
information to make a judgment based on the overall condition of
the ATC system. . . ." Fourth Annual Report of the Secretary of
Transportation for Fiscal Year 1970.
MR. JUSTICE REHNQUIST, with whom MR. JUSTICE STEWART, MR.
JUSTICE WHITE, and MR. JUSTICE MARSHALL join, dissenting.
The Court concludes that congressional legislation dealing with
aircraft noise has so "pervaded" that field that Congress has
impliedly preempted it, and therefore the ordinance of the
city of Burbank here challenged is
Page 411 U. S. 641
invalid under the Supremacy Clause of the Constitution. The
Court says that the 1972
"Act reaffirms and reinforces the conclusion that FAA, now in
conjunction with EPA, has full control over aircraft noise,
preempting state and local control."
Ante at
411 U. S. 633.
Yet the House and Senate committee reports explicitly state that
the 1972 Act to which the Court refers was not intended to alter
the balance between state and federal regulation which had been
struck by earlier congressional legislation in this area. The House
Report H.R.Rep. No. 92-842, in discussing the general preemptive
effect of the entire bill, stated:
"The authority of State and local government to regulate use,
operation, or movement of products is not affected at all by the
bill. (The preemption provision discussed in this paragraph does
not apply to aircraft.
See discussion of aircraft noise
below.)"
Id. at 8. The report went on to state specifically:
"No provision of the bill is intended to alter in any way the
relationship between the authority of the Federal Government and
that of State and local governments that existed with respect to
matters covered by section 611 of the Federal Aviation Act of 1958
prior to the enactment of the bill."
Id.. at 10.
The report of the Senate Public Works Committee, S.Rep. No.
92-1160, expressed the identical intent with respect to
preemption:
"States and local governments are preempted from establishing or
enforcing noise emission standards for aircraft [
see American
Airlines v. Hempstead, 272 F.
Supp. 226 (EDNY 1967)], unless such standards are identical to
standards prescribed under this bill. This does not address
responsibilities or powers
Page 411 U. S. 642
of airport operators, and no provision of the bill is intended
to alter in any way the relationship between the authority of the
Federal government and that of State and local governments that
existed with respect to matters covered by section 611 of the
Federal Aviation Act of 1958 prior to the enactment of the
bill."
Id. at 10-11.
In the light of these specific congressional disclaimers of
preemption in the 1972 Act, reference must necessarily be had to
earlier congressional legislation on the subject. [
Footnote 2/1] It was on the basis of these earlier
enactments that the Court of Appeals concluded that Congress had
preempted the field from state or local regulation of the type that
the city of Burbank enacted.
The Burbank ordinance prohibited jet takeoffs from the
Hollywood-Burbank Airport during the late evening and early morning
hours. Its purpose was to afford local residents at least partial
relief, during normal sleeping hours, from the noise associated
with jet airplanes. The ordinance in no way dealt with flights over
the city,
cf. American Airlines v.
Hempstead, 272 F.
Supp. 226 (EDNY 1967),
aff'd, 398 F.2d 369 (CA2 1968),
cert. denied, 393 U.S. 1017 (1969), nor did it
categorically prohibit all jet takeoffs during those hours.
Appellees do not contend that the noise produced by jet engines
could not reasonably be deemed to affect
Page 411 U. S. 643
adversely the health and welfare of persons constantly exposed
to it; control of noise, sufficiently loud to be classified as a
public nuisance at common law, would be a type of regulation well
within the traditional scope of the police power possessed by
States and local governing bodies. Because noise regulation has
traditionally been an area of local, not national, concern, in
determining whether congressional legislation has, by implication,
foreclosed remedial local enactments,
"we start with the assumption that the historic police powers of
the States were not to be superseded by the Federal Act unless that
was the clear and manifest purpose of Congress."
Rice v. Santa Fe Elevator Corp., 331 U.
S. 218,
331 U. S. 230
(1947). This assumption derives from our basic constitutional
division of legislative competence between the States and Congress;
from
"due regard for the presuppositions of our embracing federal
system,
including the principle of diffusion of power not as a
matter of doctrinaire localism, but as a promoter of
democracy. . . ."
San Diego Building Trades Council v. Garmon,
359 U. S. 236,
359 U. S. 243
(1959) (emphasis added). Unless the requisite preemptive intent is
abundantly clear, we should hesitate to invalidate state and local
legislation for the added reason that
"the state is powerless to remove the ill effects of our
decision, while the national government, which has the ultimate
power, remains free to remove the burden."
Penn Dairies, Inc. v. Milk Control Comm'n, 318 U.
S. 261,
318 U. S. 275
(1943).
Since Congress' intent in enacting the 1972 Act was clearly to
retain the
status quo between the federal regulation and
local regulation, a holding of implied preemption of the field
depends upon whether two earlier congressional enactments, the
Federal Aviation Act of 1958, 72 Stat. 731, 49 U.S.C. § 1301
et
seq., and the 1968 noise abatement amendment to that Act,
49
Page 411 U. S. 644
U.S.C. § 1431, manifested the clear intent to preclude local
regulations, that our prior decisions require.
The 1958 Act was intended to consolidate in one agency in the
Executive Branch the control over aviation that had previously been
diffused within that branch. The paramount substantive concerns of
Congress were to regulate federally all aspects of air safety,
see, e.g., 49 U.S.C. § 1422 and, once aircraft were in
"flight," airspace management,
see, e.g., 49 U.S.C. §
1348(a).
See S.Rep. No. 1811, 85th Cong., 2d Sess., 5-6,
13-15. While the Act might be broad enough to permit the
Administrator to promulgate takeoff and landing rules to avoid
excessive noise at certain hours of the day,
see 49 U.S.C.
§ 1348(c), Congress was not concerned with the problem of noise
created by aircraft, and did not intend to preempt its regulation.
Furthermore, while Congress clearly intended to preempt the States
from regulating aircraft in flight, the author of the bill, Senator
Monroney, specifically stated that FAA would not have control "over
the ground space" of airports. [
Footnote 2/2]
The development and increasing use of civilian jet aircraft
resulted in congressional concern over the noise associated with
those aircraft. Hearings were held over a period of several years,
resulting in a report, but no legislation. The report of the House
Committee on Interstate and Foreign Commerce, H.R.Rep. No. 36, 88th
Cong., 1st Sess., shows clearly that the 1058 Act was thought by at
least some in Congress neither to preempt local legislative action
to alleviate the growing noise problem nor to prohibit local
curfews:
"Until Federal action is taken, the local governmental
authorities must be deemed to possess the
Page 411 U. S. 645
police power necessary to protect their citizens and property
from the unreasonable invasion of aircraft noise. The wisdom of
exercising such power or the manner of the exercise is a problem to
be resolved on the local governmental level."
"
* * * *"
"Airports in the United States, as a general rule, are operated
by a local governmental authority, either a municipality, a county,
or some independent unit. These airport operators are closer, both
geographically and politically, to the problem of the conflict of
interests between those citizens who have been adversely affected
by the aircraft noise and the needs of the community for air
commerce. Some airport operators have exercised the proprietary
right to restrict in a reasonable manner the use of any runway by
limiting either the hours during which it may be used or the types
of civil transport aircraft that may use it."
H.R.Rep. No. 36, 88th Cong., 1st Sess., 27.
Several years after the conclusion of these hearings, Congress
enacted the 1968 noise abatement amendment, 82 Stat. 395, which
added § 611 to the 1958 Act, 49 U.S.C. § 1431, and which was the
first congressional legislation dealing with the problem of
aircraft noise. On its face, [
Footnote
2/3] § 611, as added by the 1968 amendment, neither preempted
the general field of regulation of
Page 411 U. S. 646
aircraft noise nor dealt specifically with the more limited
question of curfews. The House Committee on Interstate and Foreign
Commerce, after reciting the serious proportions of the problem,
outlined the type of federal regulation that the Act sought to
impose:
"The noise problem is basically a conflict between two groups or
interests. On the one hand, there is
Page 411 U. S. 647
a group who provide various air transportation services. On the
other hand, there is a group who live, work, and go to schools and
churches in communities near airports. The latter group is
frequently burdened to the point where they can neither enjoy nor
reasonably use their land because of noise resulting from aircraft
operations. Many of them derive no direct benefit from the aircraft
operations which create the unwanted noise. Therefore, it is easy
to understand why they complain, and complain most vehemently. The
possible solutions to this demanding and vexing problem which
appear to offer the most promise are (1) new or modified engine and
airframe designs, (2) special flight operating techniques and
procedures, and (3) planning for land use in areas adjacent to
airports so that such land use will be most compatible with
aircraft operations.
This legislation is directed toward the
primary problem, namely, reduction of noise at its
source."
(Emphasis added.) H.R.Rep. No. 1463, 90th Cong., 2d Sess., 4.
Far from indicating any total preemptive intent, the House
Committee observed:
"Rather, the committee expects manufacturers, air carriers, all
other segments of the aviation community, and State and local civic
and governmental entities to continue and increase their
contributions toward the common goal of quiet."
Ibid.
The Senate Commerce Committee's view of the House bill followed
a similar vein:
"This investment by the industry is representative of one of the
avenues of approach to aircraft noise reduction, that is, the
development of aircraft which generate less noise. Another approach
to noise reduction is through the establishment of special
flight
Page 411 U. S. 648
operating techniques and procedures. The third principal control
technique which merits serious consideration is the planning for
land use in areas near airports so as to make such use compatible
with aircraft operations. This is a matter largely within the
province of State and local governments. While all of these
techniques must be thoroughly studied and employed, the first order
of business is to stop the escalation of aircraft noise by imposing
standards which require the full application of noise reduction
technology."
"A completely quiet airplane will not be developed within the
foreseeable future. However, with the technological and regulatory
means now at hand, it is possible to reduce both the level and the
impact of aircraft noise. Within the limits of technology and
economic feasibility, it is the view of the committee that the
Federal Government must assure that the potential reductions are in
fact, realized."
S.Rep. No. 1353, 90th Cong., 2d Sess., 2-3. With specific
emphasis on preemption, the Senate Committee observed:
"
Relation to Local Government Initiatives"
"The bill is an amendment to a statute describing the powers and
duties of the Federal Government with respect to air commerce. As
indicated earlier in this report, certain actions by State and
local public agencies, such as zoning to assure compatible land
use, are a necessary part of the total attack on aircraft noise. In
this connection, the question is raised whether this bill adds or
subtracts anything from the powers of State or local governments.
It is not the intent of the committee in recommending this
legislation to effect any change in the existing apportionment of
powers between the Federal and State and local governments. "
Page 411 U. S. 649
"In this regard, we concur in the following views set forth by
the Secretary in his letter to the Committee of June 22, 1968:
"
" The courts have held that the Federal Government presently
preempts the field of noise regulation insofar as it involves
controlling the flight of aircraft. Local noise control legislation
limiting the permissible noise level of all overflying aircraft has
recently been struck down because it conflicted with Federal
regulation of air traffic.
American Airlines v. Town of
Hempstead, 272 F.
Supp. 226 (U.S.D.C. E. D., N.Y.1966). The court said, at 231,
'The legislation operates in an area committed to Federal care, and
noise limiting rules operating as do those of the ordinance must
come from a Federal source.' H.R. 3400 would merely expand the
Federal Government's role in a field already preempted. It would
not change this preemption. State and local governments will remain
unable to use their police powers to control aircraft noise by
regulating the flight of aircraft."
" However, the proposed legislation will not affect the rights
of a State or local public agency, as the proprietor of an airport,
from issuing regulations or establishing requirements as to the
permissible level of noise which can be created by aircraft using
the airport. Airport owners, acting as proprietors, can presently
deny the use of their airports to aircraft on the basis of noise
considerations so long as such exclusion is nondiscriminatory."
" Just as an airport owner is responsible for deciding how long
the runways will be, so is the owner responsible for obtaining
noise easements necessary to permit the landing and takeoff of the
aircraft. The Federal Government is in no position to require an
airport to accept service by larger aircraft,
Page 411 U. S. 650
and, for that purpose, to obtain longer runways. Likewise, the
Federal Government is in no position to require an airport to
accept service by noisier aircraft, and, for that purpose, to
obtain additional noise easements. The issue is the service desired
by the airport owner and the steps it is willing to take to obtain
the service. In dealing with this issue, the Federal Government
should not substitute its judgment for that of the States or
elements of local government who, for the most part, own and
operate our Nation's airports. The proposed legislation is not
designed to do this, and will not prevent airport proprietors from
excluding any aircraft on the basis of noise considerations."
"Of course, the authority of units of local government to
control the effects of aircraft noise through the exercise of land
use planning and zoning powers is not diminished by the bill."
"Finally, since the flight of aircraft has been preempted by the
Federal Government, State and local governments can presently
exercise no control over sonic boom. The bill makes no change in
this regard."
Id. at 6-7.
In terms of preemption analysis, the most reasonable reading of
§ 611 appears to be that it was enacted to enable the Federal
Government to deal with the noise problem created by jet aircraft
through study and regulation of the "source" of the problem -- the
mechanical and structural aspects of jet and turbine aircraft
design. The authority to
"prescribe and amend such rules and regulations as he may find
necessary to provide for the control and abatement of aircraft
noise and sonic boom,"
49 U.S.C. § 1431(a), while a broad grant of authority to the
Administrator, cannot fairly be read as prohibiting the States from
enacting every type of measure which
Page 411 U. S. 651
might have the effect of reducing aircraft noise in the absence
of a regulation to that effect under this section. The statute
established exclusive federal control of the technological methods
for reducing the output of noise by jet aircraft, but that is a far
cry from saying that it prohibited any local regulation of the
times at which the local airport might be available for the use of
jet aircraft.
The Court of Appeals found critical to its decision the
distinction between the local government as an airport proprietor
and the local government as a regulatory agency, which was
reflected in the views of the Secretary of Transportation outlined
in the Senate Report on the 1968 Amendment. Under its reasoning, a
local government unit that owned and operated an airport would not
be preempted by § 611 from totally, or, as here, partially,
excluding noisy aircraft from using its facilities, but a
municipality having territorial jurisdiction over the airport would
be preempted from enacting an ordinance having a similar effect. If
the statute actually enacted drew this distinction, I would, of
course, respect it. But, since we are dealing with "legislative
history," rather than the words actually written by Congress into
law, I do not believe it is of the controlling significance
attributed to it by the court below.
The preemption question to which the Secretary's letter was
addressed related to "the field of noise regulation insofar as it
involves controlling the
flight of aircraft" (emphasis
added), and thus included types of regulation quite different from
that enacted by the city of Burbank that would be clearly
precluded.
See American Airlines v. Hempstead, supra. But
more important is the highly practical consideration that the
Hollywood-Burbank Airport is probably the only nonfederal airport
in the country used by federally certified air carriers that is not
owned and operated by a state or local
Page 411 U. S. 652
government. [
Footnote 2/4] There
is no indication that this fact was brought to the attention of the
Senate Committee, or that the Secretary of Transportation was aware
of it in framing his letter. It simply strains credulity to believe
that the Secretary, the Senate Committee, or Congress intended that
all airports except the Hollywood-Burbank Airport could enact
curfews.
Considering the language Congress enacted into law, the
available legislative history, and the light shed by these on the
congressional purpose, Congress did not intend, either by the 1958
Act or the 1968 Amendment, to oust local governments from the
enactment of regulations such as that of the city of Burbank. The
1972 Act quite clearly intended to maintain the
status quo
between federal and local authorities. The legislative history of
the 1972 Act, quite apart from its concern with avoiding additional
preemption, discloses a primary focus on the alteration of
procedures within the Federal Government for dealing with problems
of aircraft noise already entrusted by Congress to federal
competence. The 1972 Act set up procedures by which the
Administrator of EPA would have a role to play in the formulation
and review of standards promulgated by FAA dealing with noise
emissions of jet aircraft. But because these agencies have
exclusive authority to reduce noise by promulgating regulations and
implementing standards directed at one or several of the causes of
the level of noise, local governmental bodies are not thereby
foreclosed from dealing with the noise problem by every other
conceivable method.
Page 411 U. S. 653
A local governing body that owns and operates an airport is
certainly not, by the Court's opinion, prohibited from permanently
closing down its facilities. A local governing body could likewise
use its traditional police power to prevent the establishment of a
new airport or the expansion of an existing one within its
territorial jurisdiction by declining to grant the necessary zoning
for such a facility. Even though the local government's decision in
each case were motivated entirely because of the noise associated
with airports, I do not read the Court's opinion as indicating that
such action would be prohibited by the Supremacy Clause merely
because the Federal Government has undertaken the responsibility
for some aspects of aircraft noise control. Yet, if this may be
done, the Court's opinion surely does not satisfactorily explain
why a local governing body may not enact a far less "intrusive"
ordinance such as that of the city of Burbank.
The history of congressional action in this field demonstrates,
I believe, an affirmative congressional intent to allow local
regulation. But even if it did not go that far, that history surely
does not reflect "the clear and manifest purpose of Congress" to
prohibit the exercise of "the historic police powers of the States"
which our decisions require before a conclusion of implied
preemption is reached. Clearly Congress could preempt the field to
local regulation if it chose, and very likely the authority
conferred on the Administrator of FAA by 49 U.S.C. § 1431 is
sufficient to authorize him to promulgate regulations effectively
preempting local action. But neither Congress nor the Administrator
has chosen to go that route. Until one of them does, the ordinance
of the city of Burbank is a valid exercise of its police power.
The District Court found that the Burbank ordinance would impose
an undue burden on interstate commerce,
Page 411 U. S. 654
and held it invalid under the Commerce Clause for that reason.
Neither the Court of Appeal nor this Court's opinion, in view of
their determination as to preemption, reached that question. The
District Court's conclusion appears to be based, at least in part,
on a consideration of the effect on interstate commerce that would
result if all municipal airports in the country enacted ordinances
such as that of Burbank. Since the proper determination of the
question turns on an evaluation of the facts of each case,
see,
e.g., Bibb v. Navajo Freight Lines, 359 U.
S. 520 (1959), and not on a predicted proliferation of
possibilities, the District Court's conclusion is of doubtful
validity. The Burbank ordinance did not affect emergency flights,
and had the total effect of prohibiting one scheduled commercial
flight each week and several additional private flights by
corporate executives; such a result can hardly be held to be an
unreasonable burden on commerce. Since the Court expresses no
opinion on the question, however, I refrain from any further
analysis of it. [
Footnote 2/5]
[
Footnote 2/1]
Statements or comments of individual Senators or Representatives
on the floor of either House are not to be given great, let alone
controlling, weight in ascertaining the intent of Congress as a
whole,
see, e.g., Duplex Printing Press Co. v. Deering,
254 U. S. 443,
254 U. S. 474
(1921); McCaughn v. Hershey Chocolate Co.,
283 U.
S. 488,
283 U. S. 494,
(1931);
cf. Wright v. Vinton Branch of Mountain Trust
Bank, 300 U. S. 440,
300 U. S. 464
(1937). This guidance is particularly appropriate in this case, as
the statements of two individual Congressmen quoted in the Court's
opinion are at odds with the views expressed in the committee
reports.
[
Footnote 2/2]
Hearings before the Subcommittee on Aviation of the Senate
Committee on Interstate and Foreign Commerce (hereafter Commerce
Committee), on S. 3880, Federal Aviation Agency Act, 85th Cong., 2d
Sess., 279.
[
Footnote 2/3]
"(a) Consultations; standards; rules and regulations."
"In order to afford present and future relief and protection to
the public from unnecessary aircraft noise and sonic boom, the
Administrator of the Federal Aviation Administration, after
consultation with the Secretary of Transportation, shall prescribe
and amend standards for the measurement of aircraft noise and sonic
boom and 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, including the application of such
standards, rules, and regulations in the issuance, amendment
modification, suspension, or revocation of any certificate
authorized by this subchapter."
"(b) Considerations determinative of standards, rules, and
regulations."
"In prescribing and amending standards, rules, and regulations
under this section, the Administrator 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
chapter and chapter 23 of this title;"
"(2) consult with such Federal, State, and interstate agencies
as he deems appropriate;"
"(3) 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;"
"(4) consider whether any proposed standard, rule, 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, rule, or
regulation will contribute to carrying out the purposes of this
section."
"(c) Amendment, modification, suspension, or revocation of
certificate; notice and appeal rights."
"In any action to amend, modify, suspend, or revoke a
certificate in which violation [of] aircraft noise or sonic boom
standards, rules, or regulations is at issue, the certificate
holder shall have the same notice and appeal rights as are
contained in section 1429 of this title, and in any appeal to the
National Transportation Safety Board, the Board may amend, modify,
or reverse the order of the Administrator if it finds that control
or abatement of aircraft noise or sonic boom and the public
interest do not require the affirmation of such order, or that such
order is not consistent with safety in air commerce or air
transportation."
49 U.S.C. § 1431.
[
Footnote 2/4]
The record is not exactly clear on this point, but it does
appear to be the case. Although there are several airports owned by
municipalities or other governmental units that are located outside
of the boundaries of the units, there does not appear to be any
other privately owned airport, at which certified air carriers
operate, in the country.
[
Footnote 2/5]
Although cited by the Court, this situation is clearly not a
Cooley situation, in which the control of aircraft
noise
"admitt[s] only of one uniform system, or plan of regulation,
[which] may justly be said to be of such a nature as to require
exclusive legislation by Congress."
Cooley v. Board of
Wardens, 12 How. 299,
53 U. S. 319
(1852). The court below also held, but by a divided vote, that the
Burbank ordinance was invalid because it was in conflict with a
clearly articulated federal policy, to-wit, a non-mandatory runway
preference order of the FAA tower chief at Burbank which requested
pilots to use a particular runway at night. The Court does not
decide this case on that ground; I see no occasion to express in
detail my views on the conflict issue, except to note my doubt as
to the correctness of the disposition of that question.