Appeal from an order of the United States District Court for the Southern District of New York (Milton Pollack, Judge), preliminarily enjoining the enforcement of restrictions imposed on aircraft movements at airports operated by the Port Authority of New York and New Jersey on the ground that Port Authority regulations were preempted under the Supremacy Clause.
Newman and Winter, Circuit Judges, and Maletz, Senior Judge.*fn*
Plaintiffs Global International Airways Corp. and American Trans Air, Inc. began this action in the Southern District of New York seeking to enjoin enforcement of Section 520/0-00 ("Interim Rule") and Section 530/0-00 ("Nighttime Rule") of the Aircraft Noise Regulations promulgated by the Port Authority of New York and New Jersey ("Port Authority"). Plaintiffs-intervenors the United States and Arista International Airlines joined in the action but sought only to enjoin enforcement of the Interim Rule. Separate actions were also brought by plaintiffs Zantop International Airlines and British Airtours Limited, the former seeking to enjoin both rules, the latter to enjoin only the Interim Rule.
These actions were consolidated. Ruling from the bench at the conclusion of oral argument and without an evidentiary hearing, Judge Pollack held that the Interim Rule was "in hopeless conflict" with the federal Fleet Compliance Program, 14 C.F.R. §§ 91.301-.311 and preempted under the Supremacy Clause. 564 F. Supp. 795. Judge Pollack refused to enjoin the Nighttime Rule, however, on the ground that it was a noise limitation of a type left available to municipal airport proprietors by Congress. A preliminary injunction reflecting these conclusions was entered on June 17, 1983. The Port Authority appeals from the order enjoining the Interim Rule. The Nighttime Rule is not at issue on this appeal.
Because we have concluded that the Interim Rule is not facially preempted by the federal Fleet Compliance Program, we reverse. We do not reach, however, contentions made by appellees regarding other challenges to the Interim Rule, which in our view require a factual record. Accordingly, we remand the case to the district court for further proceedings consistent with this opinion.
In 1968, Congress amended the Federal Aviation Act to give the Federal Aviation Administration ("FAA") responsibility to promulgate "such regulations as the FAA may find necessary to provide for the control and abatement of aircraft noise and sonic boom." Aircraft Noise Abatement Act of 1968, Pub. L. No. 90-411, 82 Stat. 395 (codified at 49 U.S.C. § 1431(b)(1) (1976)). The legislative history of this provision makes clear that Congress intended to continue the division of responsibility for aircraft noise abatement previously worked out between federal and local governments. Under this scheme, states and localities cannot regulate noise by controlling the flight of aircraft taking off or landing at local airports, for this method of regulating noise control is to be exercised exclusively by the federal government. On the other hand, states and localities retain power in their capacity as airport proprietors to establish requirements as to the level of permissible noise created by aircraft using their airports. This power includes the right to deny use of airports to aircraft on the basis of non-discriminatory noise criteria. See S. Rep. No. 1353, 90th Cong., 2d Sess., reprinted in 1968 U.S. Code Cong. & Ad. News 2688, 2693-94 (quoting and endorsing views set forth by the Secretary of Transportation).
In 1969, pursuant to the grant of statutory authority, the FAA promulgated Noise Standards for Aircraft Type and Air Worthiness Certification, 34 Fed. Reg. 18,355 (1969) (codified as amended at 14 C.F.R. Part 36 (1983)) ("Part 36" standards). Part 36 established uniform procedures for the measurement of airplane noise as well as minimum noise standards for large aircraft. The Part 36 standards also established three noise categories for large jet aircraft -- Stage 1, Stage 2 and Stage 3. Aircraft designed and built before the effective date of the original Part 36 standards are Stage 1 aircraft, not subject to any federal noise standard. 14 C.F.R. § 36.1(f)(2). Stage 2 aircraft are those which meet the original Part 36 standards. 14 C.F.R. § 36.1(f)(4), App. C § C36.5(a)(2). Stage 3 aircraft, the least noisy of the three types, meet noise standards established by the FAA for airplane types which received certification after 1975. 14 C.F.R. § 36.1(f)(6), App. C. § C36.5(a)(3).
The preamble of Part 36 announced as a national policy goal the eventual extension of its standards to all passenger jets manufactured and operating in the United States, a goal that necessarily implied the eventual elimination of the use of Stage 1 aircraft. The preamble also stated, however, that "the noise limits specified in Part 36 . . . are not intended to substitute federally determined noise levels for those more restrictive limits determined to be necessary by individual airport proprietors." 34 Fed. Reg. 18,355 (1969).
A program for the nationwide implementation of the Part 36 standards was announced by the FAA in 1976. Operating Noise Limits, 41 Fed. Reg. 56,046 (1976) (codified at 14 C.F.R. §§ 91.301-.311 as amended (1983)) ("Fleet Compliance Program"). According to this program, each domestic air carrier was to have: (i) 25 percent of its four-engine jets and 50 percent of its other aircraft in compliance with the Part 36 standards by January 1, 1981; (ii) 50 percent of its four-engine jets and all its other aircraft in such compliance by January 1, 1983; and (iii) all its aircraft in such compliance by January 1, 1985. 14 C.F.R. § 91.305. In short, the Fleet Compliance Program established a timetable for the gradual elimination or retrofitting of Stage 1 aircraft over an eight-year period.
In a policy statement released shortly before the promulgation of the program, the FAA emphasized that its schedule of phased compliance had been carefully tailored to be both technologically practicable and economically reasonable. Department of Transportation & Federal Aviation Administration Aviation Noise Abatement Policy (1976) ("Policy Statement"). It also warned that "measures imposed by other jurisdictions that would require more accelerated compliance with Part 36 requirements would conflict with the purpose of this federal regulation." Policy Statement at 41.
Certain exemptions were granted from the interim phase-out mandated by the federal Fleet Compliance Program. These included certain foreign registered aircraft on the ground that the application of noise standards to foreign aircraft should be arranged through international negotiations conducted under the auspices of the International Civil Aviation Organization ("ICAO"). Policy Statement at 42. The FAA warned, however, that if an international agreement were not reached by January 1, 1980, it unilaterally would require compliance by aircraft engaged in international commerce by January 1, 1985. Id. In the meantime, to avoid placing domestic carriers at a competitive disadvantage, the FAA announced that the portion of a United States carrier fleet engaged in foreign commerce would be exempted from the requirements of the Federal Fleet Compliance Program. Id.
Congress examined the FAA's Fleet Compliance Program when it considered the Aviation Safety and Noise Abatement Act of 1979 ("ASNA"), Pub. L. No. 96-193, 94 Stat. 50 (codified as amended at 49 U.S.C. §§ 2101-2125). With respect to foreign-registered aircraft, Congress directed the FAA to commence a rulemaking proceeding in the event no international agreement were reached, requiring both domestic and international carriers engaged in international commerce to comply with the standards of Part 36 and the Fleet Compliance Program by January 1, 1985, 49 U.S.C. § 2122 (a). Congress further required that domestic carriers be treated no more stringently than foreign ones in this rulemaking. Id. The legislative history of ASNA indicates that it was not intended to ...