Volume 148, No. 95 covering the 2nd Session of the 107th Congress (2001 - 2002) was published by the Congressional Record.
The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“House of Representatives” mentioning the Environmental Protection Agency was published in the House of Representatives section on pages H4609-H4653 on July 15, 2002.
The publication is reproduced in full below:
House of Representatives
NATIONAL AVIATION CAPACITY EXPANSION ACT OF 2002
Mr. KIRK. Mr. Speaker, I move to suspend the rules and pass the bill
(H.R. 3479) to expand aviation capacity in the Chicago area, as amended.
The Clerk read as follows:
H.R. 3479
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
TITLE I--NATIONAL AVIATION CAPACITY EXPANSION
SEC. 101. SHORT TITLE.
This title may be cited as the ``National Aviation Capacity Expansion Act of 2002''.
SEC. 102. FINDINGS.
Congress finds the following:
(1) O'Hare International Airport consistently ranks as the Nation's first or second busiest airport with nearly 34,000,000 annual passengers enplanements, almost all of whom travel in inter-state or foreign commerce. The Federal Aviation Administration's most recent data, compiled in the Airport Capacity Benchmark Report 2001, projects demand at O'Hare to grow by 18 percent over the next decade. O'Hare handles 72,100,000 passengers annually, compared with 64,600,000 at London Heathrow International Airport, Europe's busiest airport, and 36,700,000 at Kimpo International Airport, Korea's busiest airport, 7,400,000 at Narita International Airport, Japan's busiest airport, 23,700,000 at Kingsford-Smith International Airport, Australia's busiest airport, and 6,200,000 at Ezeiza International Airport, Argentina's busiest airport, as well as South America's busiest airport.
(2) The Airport Capacity Benchmark Report 2001 ranks O'Hare as the third most delayed airport in the United States. Overall, slightly more than 6 percent of all flights at O'Hare are delayed significantly (more than 15 minutes). On good weather days, scheduled traffic is at or above capacity for 3\1/2\ hours of the day with about 2 percent of flights at O'Hare delayed significantly. In adverse weather, capacity is lower and scheduled traffic exceeds capacity for 8 hours of the day, with about 12 percent of the flights delayed.
(3) The city of Chicago, Illinois, which owns and operates O'Hare, has been unable to pursue projects to increase the operating capability of O'Hare runways and thereby reduce delays because the city of Chicago and the State of Illinois have been unable for more than 20 years to agree on a plan for runway reconfiguration and development. State law states that such projects at O'Hare require State approval.
(4) On December 5, 2001, the Governor of Illinois and the Mayor of Chicago reached an agreement to allow the city to go forward with a proposed capacity enhancement project for O'Hare which involves redesign of the airport's runway configuration.
(5) In furtherance of such agreement, the city, with approval of the State, applied for and received a master-planning grant from the Federal Aviation Administration for the capacity enhancement project.
(6) The agreement between the city and the State is not binding on future Governors of Illinois.
(7) Future Governors of Illinois could stop the O'Hare capacity enhancement project by refusing to issue a certificate required for such project under the Illinois Aeronautics Act, or by refusing to submit airport improvement grant requests for the project, or by improperly administering the State implementation plan process under the Clean Air Act (42 U.S.C. 7401 et seq.) to prevent construction and operation of the project.
(8) The city of Chicago is unwilling to continue to go forward with the project without assurance that future Governors of Illinois will not be able to stop the project, thereby endangering the value of the investment of city and Federal resources in the project.
(9) Because of the importance of O'Hare to the national air transportation system and the growing congestion at the airport and because of the expenditure of Federal funds for a master-planning grant for expansion of capacity at O'Hare, it is important to the national air transportation system, interstate commerce, and the efficient expenditure of Federal funds, that the city of Chicago's proposals to the Federal Aviation Administration have an opportunity to be considered for Federal approval and possible funding, that the city's requests for changes to the State implementation plan to allow such projects not be denied arbitrarily, and that, if the Federal Aviation Administration approves the project and funding for a portion of its cost, the city can implement and use the project.
(10) Any application submitted by the city of Chicago for expansion of O'Hare should be evaluated by the Federal Aviation Administration and other Federal agencies under all applicable Federal laws and regulations and should be approved only if the application meets all requirements imposed by such laws and regulations.
(11) As part of the agreement between the city and the State allowing the city to submit an application for improvement of O'Hare, there has been an agreement for the continued operation of Merrill C. Meigs Field by the city, and it has also been agreed that, if the city does not follow the agreement on Meigs Field, Federal airport improvement program funds should be withheld from the city for O'Hare.
(12) To facilitate implementation of the agreement allowing the city to submit an application for O'Hare, it is desirable to require by law that Federal airport improvement program funds for O'Hare be administered to require continued operation of Merrill C. Meigs Field by the city, as proposed in the agreement.
(13) To facilitate implementation of the agreement allowing the city to submit an application for O'Hare, it is desirable to enact into law provisions of the agreement relating to noise and public roadway access. These provisions are not inconsistent with Federal law.
(14) If the Federal Aviation Administration approves an airport layout plan for O'Hare directly related to the agreement reached on December 5, 2001, such approvals will constitute an action of the United States under Federal law and will be an important first step in the process by which the Government could decide that these plans should receive Federal assistance under chapter 471 of title 49, United States Code, relating to airport development.
(15) The agreement between the State of Illinois and the city of Chicago includes agreement that the construction of an airport in Peotone, Illinois, would be proposed by the State to the Federal Aviation Administration. Like the O'Hare expansion proposal, the Peotone proposal should receive full consideration by the Federal Aviation Administration under standard procedures for approving and funding an airport improvement project, including all applicable safety, utility and efficiency, and environmental review.
(16) Gary/Chicago Airport in Gary, Indiana, and the Greater Rockford Airport, Illinois, may alleviate congestion and provide additional capacity in the greater Chicago metropolitan region. Like the O'Hare airport expansion proposal, expansion efforts by Gary/Chicago and Greater Rockford airports should receive full consideration by the Federal Aviation Administration under standard procedures for approving and funding an airport capacity improvement project, including all applicable safety, utility and efficiency, and environmental reviews.
SEC. 103. STATE, CITY, AND FAA AUTHORITY.
(a) Prohibition.--In furtherance of the purpose of this Act to achieve significant air transportation benefits for interstate and foreign commerce, if the Federal Aviation Administration makes, or at any time after December 5, 2001 has made, a grant to the city of Chicago, Illinois, with the approval of the State of Illinois for planning or construction of runway improvements at O'Hare International Airport, the State of Illinois, and any instrumentality or political subdivision of the State, are prohibited from exercising authority under sections 38.01, 47, and 48 of the Illinois Aeronautics Act (620 ILCS 5/) to prevent, or have the effect of preventing--
(1) further consideration by the Federal Aviation Administration of an O'Hare airport layout plan directly related to the agreement reached by the State and the city on December 5, 2001, with respect to O'Hare;
(2) construction of projects approved by the Administration in such O'Hare airport layout plan; or
(3) application by the city of Chicago for Federal airport improvement program funding for projects approved by the Administration and shown on such O'Hare airport layout plan.
(b) Applications for Federal Funding.--Notwithstanding any other provision of law, the city of Chicago is authorized to submit directly to the Federal Aviation Administration without the approval of the State of Illinois, applications for Federal airport improvement program funding for planning and construction of a project shown on an O'Hare airport layout plan directly related to the agreement reached on December 5, 2001, and to accept, receive, and disburse such funds without the approval of the State of Illinois.
(c) Limitation.--If the Federal Aviation Administration determines that an O'Hare airport layout plan directly related to the agreement reached on December 5, 2001, will not be approved by the Administration, subsections (a) and
(b) of this section shall expire and be of no further effect on the date of such determination.
(d) Western Public Roadway Access.--As provided in the December 5, 2001, agreement referred to in subsection (a), the Administrator of the Federal Aviation Administration shall not consider an airport layout plan submitted by the city of Chicago that includes the runway redesign plan, unless the airport layout plan includes public roadway access through the existing western boundary of O'Hare to passenger terminal and parking facilities located inside the boundary of O'Hare and reasonably accessible to such western access. Approval of western public roadway access shall be subject to the condition that the cost of construction be paid for from airport revenues consistent with Administration revenue use requirements.
(e) Noise Mitigation.--As provided in the December 5, 2001, agreement referred to in subsection (a), the following apply:
(1) Approval by the Administrator of an airport layout plan that includes the runway redesign plan shall require the city of Chicago to offer acoustical treatment of all single-family houses and schools located within the 65 DNL noise contour for each construction phase of the runway redesign plan, subject to Administration guidelines and specifications of general applicability. The Administrator may not approve the runway redesign plan unless the city provides the Administrator with information sufficient to demonstrate that the acoustical treatment required by this paragraph is feasible.
(2)(A) Approval by the Administrator of an airport layout plan that includes the runway redesign plan shall be subject to the condition that noise impact of aircraft operations at O'Hare in the calendar year immediately following the year in which the first new runway is first used and in each calendar year thereafter will be less than the noise impact in calendar year 2000.
(B) The Administrator shall make the determination described in subparagraph (A)--
(i) using, to the extent practicable, the procedures specified in part 150 of title 14, Code of Federal Regulations;
(ii) using the same method for calendar year 2000 and for each forecast year; and
(iii) by determining noise impact solely in terms of the aggregate number of square miles and the aggregate number of single-family houses and schools exposed to 65 or greater decibels using the DNL metric, including only single-family houses and schools in existence on the last day of calendar year 2000. The Administrator shall make such determination based on information provided by the city of Chicago, which shall be independently verified by the Administrator.
(C) The conditions described in this subsection shall be enforceable exclusively through the submission and approval of a noise compatibility plan under part 150 of title 14, Code of Federal Regulations. The noise compatibility plan submitted by the city of Chicago shall provide for compliance with this subsection. The Administrator shall approve measures sufficient for compliance with this subsection in accordance with procedures under such part 150. The United States shall have no financial responsibility or liability if operations at O'Hare in any year do not satisfy the conditions in this subsection.
(f) Report to Congress.--If the runway redesign plan described in this section has not received all Federal, State, and local permits and approvals necessary to begin construction by December 31, 2004, the Administrator shall submit a status report to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives within 120 days of such date identifying each permit and approval necessary for the project and the status of each such action.
(g) Judicial Review.-- An order issued by the Administrator, in whole or in part, under this section shall be deemed to be an order issued under part A of subtitle VII of title 49, United States Code, and shall be reviewed in accordance with the procedure in section 46110 of such title.
(h) Definition.--In this section, the terms ``airport layout plan directly related to the agreement reached on December 5, 2001'' and ``such airport layout plan'' mean a plan that shows--
(1) 6 parallel runways at O'Hare oriented in the east-west direction with the capability for 4 simultaneous independent visual aircraft arrivals in both directions, and all associated taxiways, navigational facilities, and other related facilities; and
(2) closure of existing runways 14L-32R, 14R-32L and 18-36 at O'Hare.
SEC. 104. CLEAN AIR ACT.
(a) Implementation Plan.--An implementation plan shall be prepared by the State of Illinois under the Clean Air Act (42 U.S.C. 7401 et seq.) in accordance with the State's customary practices for accounting for and regulating emissions associated with activity at commercial service airports. The State shall not deviate from its customary practices under the Clean Air Act for the purpose of interfering with the construction of a runway pursuant to the redesign plan or the south surburban airport. At the request of the Administrator of the Federal Aviation Administration, the Administrator of the Environmental Protection Agency shall, in consultation with the Administrator of the Federal Aviation Administration, determine that the foregoing condition has been satisfied before approving an implementation plan. Nothing in this section shall be construed to affect the obligations of the State under section 176(c) of the Clean Air Act (42 U.S.C. 7506(c)).
(b) Limitation on Approval.--The Administrator of the Federal Aviation Administration shall not approve the runway redesign plan unless the Administrator of the Federal Aviation Administration determines that the construction and operation will include, to the maximum extent feasible, the best management practices then reasonably available to and used by operators of commercial service airports to mitigate emissions regulated under the implementation plan.
SEC. 105. MERRILL C. MEIGS FIELD.
The State of Illinois and the city of Chicago, Illinois, have agreed to the following:
(1) Until January 1, 2026, the Administrator of the Federal Aviation Administration shall withhold all Federal airport grant funds respecting O'Hare International Airport, other than grants involving national security and safety, unless the Administrator is reasonably satisfied that the following conditions have been met:
(A) Merrill C. Meigs Field in Chicago either is being operated by the city of Chicago as an airport or has been closed by the Administration for reasons beyond the city's control.
(B) The city of Chicago is providing, at its own expense, all off-airport roads and other access, services, equipment, and other personal property that the city provided in connection with the operation of Meigs Field on and prior to December 1, 2001.
(C) The city of Chicago is operating Meigs Field, at its own expense, at all times as a public airport in good condition and repair open to all users capable of utilizing the airport and is maintaining the airport for such public operations at least from 6:00 A.M. to 10:00 P.M. 7 days a week whenever weather conditions permit.
(D) The city of Chicago is providing or causing its agents or independent contractors to provide all services (including police and fire protection services) provided or offered at Meigs Field on or immediately prior to December 1, 2001, including tie-down, terminal, refueling, and repair services, at rates that reflect actual costs of providing such goods and services.
(2) If Meigs Field is closed by the Administration for reasons beyond the city of Chicago's control, the conditions described in subparagraphs (B) through (D) of paragraph (1) shall not apply.
(3) After January 1, 2006, the Administrator shall not withhold Federal airport grant funds to the extent the Administrator determines that withholding of such funds would create an unreasonable burden on interstate commerce.
(4) The Administrator shall not enforce the conditions listed in paragraph (1) if the State of Illinois enacts a law on or after January 1, 2006, authorizing the closure of Meigs Field.
(5) Net operating losses resulting from operation of Meigs Field, to the extent consistent with law, are expected to be paid by the 2 air carriers at O'Hare International Airport that paid the highest amount of airport fees and charges at O'Hare International Airport for the preceding calendar year. Notwithstanding any other provision of law, the city of Chicago may use airport revenues generated at O'Hare International Airport to fund the operation of Meigs Field.
SEC. 106. APPLICATION WITH EXISTING LAW.
Nothing in this Act shall give any priority to or affect availability or amounts of funds under chapter 471 of title 49, United States Code, to pay the costs of O'Hare International Airport, improvements shown on an airport layout plan directly related to the agreement reached by the State of Illinois and the city of Chicago, Illinois, on December 5, 2001.
SEC. 107. SENSE OF CONGRESS ON QUIET AIRCRAFT TECHNOLOGY
RESEARCH AND DEVELOPMENT.
It is the sense of the Congress that the Office of Environment and Energy of the Federal Aviation Administration should be funded to carry out noise mitigation programming and quiet aircraft technology research and development at a level of $37,000,000 for fiscal year 2004 and $47,000,000 for fiscal year 2005.
TITLE II--AIRPORT STREAMLINING APPROVAL PROCESS
SEC. 201. SHORT TITLE.
This title may be cited as the ``Airport Streamlining Approval Process Act of 2002''.
SEC. 202. FINDINGS.
Congress finds that--
(1) airports play a major role in interstate and foreign commerce;
(2) congestion and delays at our Nation's major airports have a significant negative impact on our Nation's economy;
(3) airport capacity enhancement projects at congested airports are a national priority and should be constructed on an expedited basis;
(4) airport capacity enhancement projects must include an environmental review process that provides local citizenry an opportunity for consideration of and appropriate action to address environmental concerns; and
(5) the Federal Aviation Administration, airport authorities, communities, and other Federal, State, and local government agencies must work together to develop a plan, set and honor milestones and deadlines, and work to protect the environment while sustaining the economic vitality that will result from the continued growth of aviation.
SEC. 203. PROMOTION OF NEW RUNWAYS.
Section 40104 of title 49, United States Code, is amended by adding at the end the following:
``(c) Airport Capacity Enhancement Projects at Congested Airports.--In carrying out subsection (a), the Administrator shall take action to encourage the construction of airport capacity enhancement projects at congested airports as those terms are defined in section 47179.''.
SEC. 204. AIRPORT PROJECT STREAMLINING.
(a) In General.--Chapter 471 of title 49, United States Code, is amended by inserting after section 47153 the following:
``SUBCHAPTER III--AIRPORT PROJECT STREAMLINING
``Sec. 47171. DOT as lead agency
``(a) Airport Project Review Process.--The Secretary of Transportation shall develop and implement a coordinated review process for airport capacity enhancement projects at congested airports.
``(b) Coordinated Reviews.--The coordinated review process under this section shall provide that all environmental reviews, analyses, opinions, permits, licenses, and approvals that must be issued or made by a Federal agency or airport sponsor for an airport capacity enhancement project at a congested airport will be conducted concurrently, to the maximum extent practicable, and completed within a time period established by the Secretary, in cooperation with the agencies identified under subsection (c) with respect to the project.
``(c) Identification of Jurisdictional Agencies.--With respect to each airport capacity enhancement project at a congested airport, the Secretary shall identify, as soon as practicable, all Federal and State agencies that may have jurisdiction over environmental-related matters that may be affected by the project or may be required by law to conduct an environmental-related review or analysis of the project or determine whether to issue an environmental-related permit, license, or approval for the project.
``(d) State Authority.--If a coordinated review process is being implemented under this section by the Secretary with respect to a project at an airport within the boundaries of a State, the State, consistent with State law, may choose to participate in such process and provide that all State agencies that have jurisdiction over environmental-related matters that may be affected by the project or may be required by law to conduct an environmental-related review or analysis of the project or determine whether to issue an environmental-related permit, license, or approval for the project, be subject to the process.
``(e) Memorandum of Understanding.--The coordinated review process developed under this section may be incorporated into a memorandum of understanding for a project between the Secretary and the heads of other Federal and State agencies identified under subsection (c) with respect to the project and the airport sponsor.
``(f) Effect of Failure To Meet Deadline.--
``(1) Notification of congress and ceq.--If the Secretary determines that a Federal agency, State agency, or airport sponsor that is participating in a coordinated review process under this section with respect to a project has not met a deadline established under subsection (b) for the project, the Secretary shall notify, within 30 days of the date of such determination, the Committee on Transportation and Infrastructure of the House of Representatives, the Committee on Commerce, Science, and Transportation of the Senate, the Council on Environmental Quality, and the agency or sponsor involved about the failure to meet the deadline.
``(2) Agency report.--Not later than 30 days after date of receipt of a notice under paragraph (1), the agency or sponsor involved shall submit a report to the Secretary, the Committee on Transportation and Infrastructure of the House of Representatives, the Committee on Commerce, Science, and Transportation of the Senate, and the Council on Environmental Quality explaining why the agency or sponsor did not meet the deadline and what actions it intends to take to complete or issue the required review, analysis, opinion, license, or approval.
``(g) Purpose and Need.--For any environmental review, analysis, opinion, permit, license, or approval that must be issued or made by a Federal or State agency that is participating in a coordinated review process under this section with respect to an airport capacity enhancement project at a congested airport and that requires an analysis of purpose and need for the project, the agency, notwithstanding any other provision of law, shall be bound by the project purpose and need as defined by the Secretary.
``(h) Alternatives Analysis.--The Secretary shall determine the reasonable alternatives to an airport capacity enhancement project at a congested airport. Any other Federal or State agency that is participating in a coordinated review process under this section with respect to the project shall consider only those alternatives to the project that the Secretary has determined are reasonable.
``(i) Solicitation and Consideration of Comments.--In applying subsections (g) and (h), the Secretary shall solicit and consider comments from interested persons and governmental entities.
``Sec. 47172. Categorical exclusions
``Not later than 120 days after the date of enactment of this section, the Secretary of Transportation shall develop and publish a list of categorical exclusions from the requirement that an environmental assessment or an environmental impact statement be prepared under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) for projects at airports.
``Sec. 47173. Access restrictions to ease construction
``At the request of an airport sponsor for a congested airport, the Secretary of Transportation may approve a restriction on use of a runway to be constructed at the airport to minimize potentially significant adverse noise impacts from the runway only if the Secretary determines that imposition of the restriction--
``(1) is necessary to mitigate those impacts and expedite construction of the runway;
``(2) is the most appropriate and a cost-effective measure to mitigate those impacts, taking into consideration any environmental tradeoffs associated with the restriction; and
``(3) would not adversely affect service to small communities, adversely affect safety or efficiency of the national airspace system, unjustly discriminate against any class of user of the airport, or impose an undue burden on interstate or foreign commerce.
``Sec. 47174. Airport revenue to pay for mitigation
``(a) In General.--Notwithstanding section 47107(b), section 47133, or any other provision of this title, the Secretary of Transportation may allow an airport sponsor carrying out an airport capacity enhancement project at a congested airport to make payments, out of revenues generated at the airport (including local taxes on aviation fuel), for measures to mitigate the environmental impacts of the project if the Secretary finds that--
``(1) the mitigation measures are included as part of, or are consistent with, the preferred alternative for the project in the documentation prepared pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);
``(2) the use of such revenues will provide a significant incentive for, or remove an impediment to, approval of the project by a State or local government; and
``(3) the cost of the mitigation measures is reasonable in relation to the mitigation that will be achieved.
``(b) Mitigation of Aircraft Noise.--Mitigation measures described in subsection (a) may include the insulation of residential buildings and buildings used primarily for educational or medical purposes to mitigate the effects of aircraft noise and the improvement of such buildings as required for the insulation of the buildings under local building codes.
``Sec. 47175. Airport funding of FAA staff
``(a) Acceptance of Sponsor-Provided Funds.--Notwithstanding any other provision of law, the Administrator of the Federal Aviation Administration may accept funds from an airport sponsor, including funds provided to the sponsor under section 47114(c), to hire additional staff or obtain the services of consultants in order to facilitate the timely processing, review, and completion of environmental activities associated with an airport development project.
``(b) Administrative Provision.--Instead of payment from an airport sponsor from funds apportioned to the sponsor under section 47114, the Administrator, with agreement of the sponsor, may transfer funds that would otherwise be apportioned to the sponsor under section 47114 to the account used by the Administrator for activities described in subsection (a).
``(c) Receipts Credited as Offsetting Collections.--Notwithstanding section 3302 of title 31, any funds accepted under this section, except funds transferred pursuant to subsection (b)--
``(1) shall be credited as offsetting collections to the account that finances the activities and services for which the funds are accepted;
``(2) shall be available for expenditure only to pay the costs of activities and services for which the funds are accepted; and
``(3) shall remain available until expended.
``(d) Maintenance of Effort.--No funds may be accepted pursuant to subsection (a), or transferred pursuant to subsection (b), in any fiscal year in which the Federal Aviation Administration does not allocate at least the amount it expended in fiscal year 2002, excluding amounts accepted pursuant to section 337 of the Department of Transportation and Related Agencies Appropriations Act, 2002 (115 Stat. 862), for the activities described in subsection (a).
``Sec. 47176. Authorization of appropriations
``In addition to the amounts authorized to be appropriated under section 106(k), there is authorized to be appropriated to the Secretary of Transportation, out of the Airport and Airway Trust Fund established under section 9502 of the Internal Revenue Code of 1986 (26 U.S.C. 9502), $2,100,000 for fiscal year 2003 and $4,200,000 for each fiscal year thereafter to facilitate the timely processing, review, and completion of environmental activities associated with airport capacity enhancement projects at congested airports.
``Sec. 47177. Judicial review
``(a) Filing and Venue.--A person disclosing a substantial interest in an order issued by the Secretary of Transportation or the head of any other Federal agency under this part or a person or agency relying on any determination made under this part may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business. The petition must be filed not later than 60 days after the order is issued. The court may allow the petition to be filed after the 60th day only if there are reasonable grounds for not filing by the 60th day.
``(b) Judicial Procedures.--When a petition is filed under subsection (a) of this section, the clerk of the court immediately shall send a copy of the petition to the Secretary or the head of any other Federal agency involved. The Secretary or the head of such other agency shall file with the court a record of any proceeding in which the order was issued.
``(c) Authority of Court.--When the petition is sent to the Secretary or the head of any other Federal agency involved, the court has exclusive jurisdiction to affirm, amend, modify, or set aside any part of the order and may order the Secretary or the head of such other agency to conduct further proceedings. After reasonable notice to the Secretary or the head of such other agency, the court may grant interim relief by staying the order or taking other appropriate action when good cause for its action exists. Findings of fact by the Secretary or the head of such other agency are conclusive if supported by substantial evidence.
``(d) Requirement for Prior Objection.--In reviewing an order of the Secretary or the head of any other Federal agency under this section, the court may consider an objection to the action of the Secretary or the head of such other agency only if the objection was made in the proceeding conducted by the Secretary or the head of such other agency or if there was a reasonable ground for not making the objection in the proceeding.
``(e) Supreme Court Review.--A decision by a court under this section may be reviewed only by the Supreme Court under section 1254 of title 28.
``(f) Order Defined.--In this section, the term `order' includes a record of decision or a finding of no significant impact.
``Sec. 47178. Definitions
``In this subchapter, the following definitions apply:
``(1) Airport sponsor.--The term `airport sponsor' has the meaning given the term `sponsor' under section 47102.
``(2) Congested airport.--The term `congested airport' means an airport that accounted for at least 1 percent of all delayed aircraft operations in the United States in the most recent year for which such data is available and an airport listed in table 1 of the Federal Aviation Administration's Airport Capacity Benchmark Report 2001.
``(3) Airport capacity enhancement project.--The term
`airport capacity enhancement project' means--
``(A) a project for construction or extension of a runway, including any land acquisition, taxiway, or safety area associated with the runway or runway extension; and
``(B) such other airport development projects as the Secretary may designate as facilitating a reduction in air traffic congestion and delays.''.
(b) Conforming Amendment.--The analysis for chapter 471 of such title is amended by adding at the end the following:
``SUBCHAPTER III--AIRPORT PROJECT STREAMLINING
``47171. DOT as lead agency.
``47172. Categorical exclusions.
``47173. Access restrictions to ease construction.
``47174. Airport revenue to pay for mitigation.
``47175. Airport funding of FAA staff.
``47176. Authorization of appropriations.
``47177. Judicial review.
``47178. Definitions.''.
SEC. 205. GOVERNOR'S CERTIFICATE.
Section 47106(c) of title 49, United States Code, is amended--
(1) in paragraph (1)--
(A) by inserting ``and'' after the semicolon at the end of subparagraph (A)(ii);
(B) by striking subparagraph (B); and
(C) by redesignating subparagraph (C) as subparagraph (B);
(2) in paragraph (2)(A) by striking ``stage 2'' and inserting ``stage 3'';
(3) by striking paragraph (4); and
(4) by redesignating paragraph (5) as paragraph (4).
SEC. 206. CONSTRUCTION OF CERTAIN AIRPORT CAPACITY PROJECTS.
Section 47504(c)(2) of title 49, United States Code, is amended--
(1) by striking ``and'' at the end of subparagraph (C);
(2) by striking the period at the end of subparagraph (D) and inserting ``; and''; and
(3) by adding at the end the following:
``(E) to an airport operator of a congested airport (as defined in section 47178) and a unit of local government referred to in paragraph (1)(A) or (1)(B) of this subsection to carry out a project to mitigate noise in the area surrounding the airport if the project is included as a commitment in a record of decision of the Federal Aviation Administration for an airport capacity enhancement project
(as defined in section 47178) even if that airport has not met the requirements of part 150 of title 14, Code of Federal Regulations.''.
SEC. 207. LIMITATIONS.
Nothing in this Act, including any amendment made by this Act, shall preempt or interfere with--
(1) any practice of seeking public comment; and
(2) any power, jurisdiction, or authority of a State agency or an airport sponsor has with respect to carrying out an airport capacity enhancement project.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from Illinois (Mr. Kirk) and the gentleman from Illinois (Mr. Lipinski) each will control 20 minutes.
Mr. JACKSON of Illinois. Mr. Speaker, I seek the time in true opposition to the bill.
The SPEAKER pro tempore. The Chair would inquire if the gentleman from Illinois (Mr. Lipinski) is opposed to the motion.
Mr. LIPINSKI. No, Mr. Speaker, I am not.
The SPEAKER pro tempore. Under clause 1(c) of rule XV, the Chair recognizes the gentleman from Illinois (Mr. Jackson) to control the time in opposition to the motion.
The Chair recognizes the gentleman from Illinois (Mr. Kirk).
Mr. KIRK. Mr. Speaker, out of deference to my friend and colleague, the gentleman from Illinois (Mr. Lipinski), I would like him to control 10 minutes of the time available to me during the debate.
The SPEAKER pro tempore. Without objection, the gentleman from Illinois (Mr. Lipinski) will control 10 minutes of the time allotted to the gentleman from Illinois (Mr. Kirk) for this debate.
There was no objection.
Mr. KIRK. Mr. Speaker, I yield myself 2 minutes.
Mr. Speaker, I am a proud cosponsor of this legislation. I want to thank the gentleman from Illinois (Mr. Lipinski) for authoring it and Speaker Hastert for calling it to the floor.
O'Hare is our Nation's busiest airport. More passengers use O'Hare International Airport than New York's LaGuardia, Washington's Reagan, and Boston's Logan Airports combined. O'Hare is an engine of economic growth, affecting jobs and income for thousands of Illinois families. Experts say when O'Hare gets a cold, other airports get pneumonia. Delays at O'Hare leave travelers stranded around the world. Today, scheduled departures at O'Hare have only a two-thirds chance of actually leaving on time. Without modernization, air travelers will continue to be delayed and Chicago's economy will stall.
This legislation does not impose a Washington solution. Illinois is one of only two States that requires the Governor's approval for runway modification. We have that approval. This legislation ratifies a historic agreement between Chicago's Democratic mayor and the Republican Governor of Illinois. It represents a local agreement made by elected officials who showed leadership.
Enactment of this legislation unlocks over $6 billion in economic development, overwhelmingly paid for from private, not public, funds. The new airport will use parallel runways that are safer than the intersecting runways we use today. The new plan will help reduce airport noise over Arlington Heights, Mount Prospect and Palatine. To the leaders of the O'Hare Noise Compatibility Commission, Mayor Arlene Mulder and Mayor Rita Mullins, our plan opens the way for more work on enhanced noise control programs, soundproofing for schools, and research into super quiet Stage IV aircraft, issues for which they have fought for years.
Our plan upholds environmental safeguards and improves the quality of life for people in northern Illinois by reducing noise and making the airport more efficient. This legislation represents cooperation and collaboration between Republicans and Democrats, both in Illinois and in Washington. Tonight, half of the Congress will say ``yes'' to O'Hare and provide a strong impetus for the Senate to make this project a reality before Congress adjourns.
I urge adoption of this legislation, and I compliment the gentleman from Illinois (Mr. Lipinski), my partner on this effort.
Mr. Speaker, I reserve the balance of my time.
Mr. JACKSON of Illinois. Mr. Speaker, I yield myself such time as I may consume.
(Mr. JACKSON of Illinois asked and was given permission to revise and extend his remarks.)
Mr. JACKSON of Illinois. Mr. Speaker, I rise in opposition to H.R. 3479. Votes on the suspension calendar are supposed to be, by definition, noncontroversial. But to argue that H.R. 3479 is noncontroversial is like arguing that the elimination of estate taxes, gun control legislation, a patients' bill of rights, and prescription drug benefits for seniors should all be put on the suspension calendar. H.R. 3479 is the most controversial of bills to come before the House this year. It has been extremely controversial in Chicago, in the northwest suburbs, in Illinois generally, in the Illinois congressional delegation where our two U.S. Senators are divided over it, in all House and Senate committees, in the full Senate, and if a full debate were held here on the House floor today, the Nation would actually see just how controversial this bill is.
This bill has already been delayed in the Senate with one virtual filibuster. It will be subjected to every parliamentary and tactical maneuver possible to try to stop it when it comes before the Senate again. Hardly noncontroversial. To tear down and rebuild O'Hare will cost taxpayers three times as much money as it will cost to build a third south suburban airport, 15 to $20 billion, not the $6.6 billion that has been floated about during this debate, versus the 5 to $7 billion to build a third airport. This bill, Mr. Speaker, is highly controversial. Tearing down and rebuilding O'Hare is estimated to take 15 to 20 years, assuming it proceeds on schedule, without lawsuits, which is not likely, while building a new south suburban airport would only take 5 years, it would expand thereafter as need arises and would be a more permanent solution to the capacity crisis. When the new O'Hare is completed, we will be in the same position we are today with regard to the air capacity crisis. How can that possibly not be seen as controversial?
This bill will increase environmental pollution. O'Hare already is the number one polluter in Illinois. Hardly noncontroversial. The Chicago Tribune won a Pulitzer Prize for documenting the sleaze surrounding Chicago O'Hare and its vendor and service contracts, hardly an uncontroversial bill for Congress to be considering without full debate.
But, Mr. Speaker, most importantly, H.R. 3479 falls woefully short of providing an adequate, equitable solution to a profound problem. Although I oppose this bill for many reasons, I rise today to discuss an important element of this bill, its constitutionality. By the attempt to rebuild and expand O'Hare Airport, Congress is inappropriately violating the 10th amendment. Under the framework of federalism established by the Federal Constitution, Congress is without power to dictate to the States how the States delegate power, or limit the delegation of that power, to their political subdivisions. Unless and until Congress decides that the Federal Government should build airports, airports will continue to be built by States or their delegated agents, State political subdivisions or other agents of State power, as an exercise of State law and State power. Further compliance by the political subdivision of the oversight conditions imposed by the State legislature as a condition of delegating the State law authority to build airports is an essential element of that delegation of State power. If Congress strips away a key element of that State law delegation, it is highly unlikely that the political subdivision, the city of Chicago, would continue to have the power to build airports under State law. The political subdivision's attempts to build runways would likely be ultra vires, without authority, under State law.
Under the 10th amendment and the framework of federalism built into the Constitution, Congress cannot command the States to affirmatively undertake an activity. Nor can Congress intrude upon or dictate to the States the prerogatives of the States as to how to allocate and exercise their State power, either directly or by the State or by delegation of State authority to its political subdivisions.
It is increasingly clear, Mr. Speaker, that under New York v. United States, Printz v. United States, Gregory v. Ashcroft, and Reno v. Condon that this bill is without the authority of the Constitution of the United States, and our position is that we stand firmly on the side of our Founding Fathers when Congress seeks to impose upon the State of Illinois, ignoring the Illinois Aeronautics Act, this unconstitutional piece of legislation.
Mr. Speaker, I rise in opposition to H.R. 3479.
Votes on the suspension calendar are supposed to be, by definition, non-controversial. But to argue that H.R. 3479 is non-controversial is like arguing that the elimination of estate taxes, gun control legislation, a patients bill of rights, and prescription drug benefits for seniors should all be on the suspension calendar. H.R. 3479 is one of the most controversial bills to come before the House this year. It has been extremely controversial in Chicago, in the northwest suburbs, in Illinois generally, in the Illinois congressional delegation(our two U.S. Senators are divided over it), in all House and Senate Committees, in the full Senate, and, if a full debate were held on the House floor today, the nation would see just how controversial this bill is.
This bill has already been delayed in the Senate with one virtual filibuster--and it will be subjected to every parliamentary and tactical maneuver possible to try to stop it when it comes before the senate again. Hardly non-controversial!
To tear down and rebuild O'Hare will cost taxpayers three times as much money as it will cost to build a third South Suburban airport--
$15-20 billion (not the $6.6 billion generally used) versus $5-7 billion. This bill is hardly non-controversial for taxpayers!
Tearing down and rebuilding O'Hare is estimated to take 15-20 years, assuming ti proceeds on schedule, without lawsuits--not likely--while building a new South Suburban Airport would take five years, it would expand thereafter as need arises, and would be a more permanent solution to the capacity crisis. When the new O'Hare is completed, we will be in the same position we are today with regard to the air capacity crisis. How is that not controversial?
This bill will double the noise pollution in the suburban communities surrounding O'Hare. It is hardly non-controversial in the polluted northwest suburbs of Chicago.
Doubling the traffic in the air space around O'Hare from 900,000 to 1.6 million operations will make flying into O'Hare less safe for the public--hardly noncontroversial for the flying public.
This bill will increase environmental pollution--O'Hare is already the number one polluter in Illinois--hardly non-controversial for those having to live in the increased pollution.
The Chicago Tribune won a Pulitzer Prize for documenting ``sleaze'' surrounding the City of Chicago and past O'Hare construction, vender, and service contracts. By passing this bill--and removing the Illinois Aeronautics Law and by-passing the Illinois General Assembly--we are virtually sanctioning more ``sleaze'' to be found around O'Hare construction, vender, and service contracts. Since when has such potential ``sleaze'' become non-controversial for Congress.
I don't consider the Federal Government running over any future Governor of Illinois, the Illinois General Assembly, the Illinois Aeronautics Law, and the 10th Amendment of the U.S. Constitution--to build an airport--non-controversial.
Finally, we're already finding out how controversial this bill is as Judge Hollis Webster on July 9, 2002, stopped the City of Chicago from running rough-shod over their northwest suburban neighbors by illegally trying to buy up and tear down their homes and businesses to make room for O'Hare expansion. This is just one of many controversial lawsuits that have been and will be filed in the future if this bill passes and becomes law.
How is tearing down and rebuilding O'Hare--which will be three times as expensive, take three times longer, be less protective of the environment, make the skys less safe, and be a less permanent solution than building a third airport--non-controversial? I say, solve the current air capacity crisis by building Peotone first, faster, cheaper, and safer, then evaluate what needs to be done with O'Hare.
H.R. 3479 fall woefully short of providing an adequate, equitable solution.
Please know that I do not oppose fixing the current air capacity crisis surrounding O'Hare. But I have many, many grave concerns about this specific expansion plan. Concerns about cost. About safety. About environmental impact. About federal precedence--and I associate myself completely with the remarks of my good friend, Mr. Hyde.
Although I oppose this bill for many reasons, I rise today to discuss an important element of this bill--constitutionality.
The attempt to rebuild and expand O'Hare Airport--Congress is inappropriately violating the Tenth Amendment.
In other contexts--specifically with regard to certain human rights--
I believe that the Tenth Amendment serves to place limitations on the federal government with which I disagree. Indeed, in the area of human right, I believe new amendments must be added to the Constitution to overcome the limitations of the Tenth Amendment. However, building airports is not a human right. Therefore, in the present context, I agree that building airports is appropriately within the purview of the states.
I believe attempts by Congress to strip the authority of Governor Ryan and the Illinois Legislature over the delegation and authorization to Chicago of state power to build airports--along with the authority of governors and state legislatures in a host of other states such as Massachusetts (Logan), New York (LaGuardia and JFK), New Jersey
(Newark), California (San Francisco airport), and the State of Washington (Seattle)--raise serious constitutional questions.
Under the framework of federalism established by the federal constitution, Congress is without power to dictate to the states how the states delegate power--or limit the delegation of that power--to their political subdivisions. Unless and until Congress decides that the federal government should build airports, airports will continue to be built by states or their delegated agents (state political subdivisions or other agents of state power) as an exercise of state law and state power. Further compliance by the political subdivision of the oversight conditions imposed by the State legislature as a condition of delegating the state law authority to build airports is an essential element of that delegation of state power. If Congress strips away a key element of that state law delegation, it is highly unlikely that the political subdivision would continue to have the power to build airports under state law. The political subdivision's attempts to build runways would likely be ultra vires (without authority) under state law.
Under the Tenth Amendment and the framework of federalism built into the Constitution, Congress cannot command the States to affirmatively undertake an activity. Nor can Congress intrude upon or dictate to the states, the prerogatives of the states as to how to allocate and exercise state power--either directly by the state or by delegation of state authority to its political subdivisions.
As states by the United States Supreme Court:
[T]he Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States.
. . . We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. New York v. United States, 505 U.S. 144, at 166 (1992) (emphasis added)
It is incontestable that the Constitution established a system of ``dual sovereignty.'' Printz v. United States, 521 U.S. 898, 981 (1997) (emphasis added)
Although the States surrendered many of their powers to the new Federal Government, they retained ``a residuary and inviolable sovereignty,'' The Federalist No. 39, at 245 (J. Madison). This is reflected throughout the Constitution's text.
Residual state sovereignty was also implicit, of course, in the Constitution's conferral upon Congress of not all governmental powers, but only discrete, enumerated ones, Art. I, Sec. 8, which implication was rendered express by the Tenth Amendment's assertion that ``[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'' Id at 918-919.
This separation of the two spheres is one of the Constitution's structural protections of liberty. ``Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a health balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front. Id at 921 quoting Gregory v. Ashcroft, 501 U.S. 452 at 458 (1991)
The Supreme Court in Printz went on to emphasize that this constitutional structural barrier to the Congress introducing on the States' sovereignty could not be avoided by claiming either (a) that the congressional authority was pursuant to the Commerce Power and the
``necessary and proper clause of the Constitution or (b) that the federal law ``preempted'' state law under the Supremacy Clause. 521 U.S. at 923-924.
It is important to note that Congress can regulate--but not affirmatively command--the states when the state decides to engage in interstate commerce. See Reno v. Condon, 528 U.S. 141 (2002). Thus in Reno, the Court upheld an act of Congress that restricted the ability of the state to distribute personal drivers' license information. But Reno did not involve an affirmative command of Congress to a state to affirmatively undertake an activity desired by Congress. Nor did Reno involve (as proposed here) an intrusion by the federal government into the delegation of state power by a state legislature--and the sate legislature's express limits on that delegation of state power--to a state political subdivision.
H.R. 3479 would involve a federal law which would prohibit a state from restricting or limiting the delegated exercise of state power by a state's political subdivision. In this case, the proposed federal law would seek to bar the Illinois Legislature from deciding the allocation of the state's power to build an airport or runways--and especially the limits and conditions imposed by the State of Illinois on the delegation of that power to Chicago. The law is clear that Congress has no power to intrude upon or interfere with a state's decision as to how to allocate state power.
A state's authority to create, modify, or even eliminate the structure and power of the state's political subdivision--whether that subdivision be Chicago, Bensenville, or Elmhurst--is a matter left by our system of federalism and our federal Constitution to the exclusive authority of the states. As stated by the Seventh Circuit in Commissioners of Highways v. United States, 653 F.2d 292 (7th Cir. 1981) (quoting Hunter v. City of Pittsburgh, 207 U.S. 161, 178 (1907)):
Municipal corporations are political subdivisions of the State, created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them. For the purpose of executing these powers properly and efficiently they usually are given the power to acquire, hold, and manage personal and real property. The number, nature and duration of the powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the State. . .
. The State, therefore, at its pleasure may modify or withdraw all such power, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the State is supreme, and its legislative body, conforming its action to the state constitution, may do as it will, unrestrained by any provision of the Constitution of the United States.
Commissioners of Highways, 653 F.2d at 297 Chicago has acknowledged that Illinois has delegated its power to build and operate airports to its political subdivisions by express statutory delegation. 65 ILCS 5/
11-102-1, 11-102-2 and 11-102-5. These state law delegations of the power to build airports and runways are subject to the Illinois Aeronautics Act requirements--including the requirement that the State approve any alterations of the airport--by their express terms. Any attempt by Congress to remove a condition or limitation imposed by the Illinois Legislature on the terms of that state law delegation of authority would likely destroy the delegation of state authority to build airports by the Illinois Legislation to Chicago--leaving Chicago without delegated state legislative authority to build runways and terminals at O'Hare or midway. The requirement that Chicago receive a state permit is an express condition of the grant of state authority and an attempt by Congress to remove that condition or limitation would mean that there was no continuing valid state delegation of authority to Chicago to build airports. Chicago's attempts to build new runways would be ultra vires under state law as being without the required state legislative authority.
Clearly this bill sets dangerous precedence by stating that Congress--not the FAA, not Departments of Transportation, not aviation experts--but Congress shall plan and built airports.
Further, it ignores the 10th Amendment to the U.S. Constitution. It guts and/or undermines state laws and environmental protections. And it sidesteps the checks-and-balances and the public hearing process.
My focus today is the same as it's always been. Finding the best fix. And that best fix is the construction of a third Chicago airport near Peotone, Illinois. The plain truth is Peotone could be build in one-
third the time at one-third the cost. For taxpayers and travelers, it's a no-brainer.
Unfortunately, this bill mandates expansion of O'Hare yet pays mere lip service to Peotone. It puts the projects on two separate and unequal tracks. That is my opinion. That is also the opinion of the Congressional Research Service, whose analysis I will provide for the record.
What we don't need at this critical juncture is favoritism or interference from politicians and profit-oriented airlines to stack the deck against Peotone. What we don't need is a bill that increases the likelihood of a constitutional challenge that prolongs the debate and delays the fix.
Thus, I urge members to reject this unprecedented, unwise, and unconstitutional bill.
Ronald D. Rotunda, University of Illinois College of Law,
Champaign, IL, March 1, 2002.Re Proposed federal legislation granting new powers to the city of Chicago.Hon. Jesse L. Jackson, Jr.,House of Representatives, Washington, DC.
Dear Congressman Jackson. As you know, I serve as the Albert E. Jenner Professor of Law at the University of Illinois Law School. I have authored a leading course book on Constitutional Law. In addition, I co-author, along with my colleague John Nowak, the widely-used multi-volume Treatise on Constitutional Law, published by West Publishing Company. In addition to my books, I have taught and researched in the area of Constitutional Law since 1974.
I have been asked to give my opinion on the constitutionality of proposed federal legislation entitled
``National Aviation Capacity Expansion Act,'' identical versions of which have been introduced in both the Senate and the House of Representatives by Senator Durbin and Congressman Lipinski (S. 1786, HR 3479), hereafter the
``Durbin-Lipinski legislation.''
The Durbin-Lipinski legislation seeks to enact Congressional approval of a proposal to construct a major alteration of O'Hare Airport in Chicago. While this legislation focuses on Chicago and the State of Illinois, the issues raised by the legislation have serious constitutional implications for all 50 States.
There are two key components of the legislation that have been the subject of my examination.
First Section 3(a)(3) attempts to give the City of Chicago
(a political subdivision and instrumentality of the State of Illinois) the legal power and authority to build a proposed major alteration of O'Hare even though state law does not authorize Chicago to build the alteration without first receiving a permit from the State of Illinois. Chicago, as a legal entity, is entirely a creation of state--not federal law--and Chicago's authority to build airports is essentially an exercise of state law power delegated to Chicago by the Illinois General Assembly.
The requirement that Chicago first obtain a state permit is an integral and essential element of that delegation of state power. The U.S. Constitution prohibits Congress (1) from invading and commandeering the exercise of state power to build airports, and (2) from changing the allocation of state-created power between the State of Illinois and its political subdivisions. The U.S. Constitution, in short, prohibits Congress from essentially rewriting state law dealing with the delegation of state power by eliminating the conditions, restrictions, and prohibitions imposed by the Illinois General Assembly on that delegation. These constitutional restrictions on Congress' power--which prohibit Congress from requiring states to change their state laws governing cities--are often termed Tenth Amendment restrictions.
Similarly, the provisions of Section 3(f) of the proposed Durbin-Lipinski legislation are necessarily conditioned upon the existence of state law authority of Chicago to enter into agreements for a third party (the FAA) to alter O'Hare without first obtaining a permit from the State of Illinois. But Chicago has no state law authority (under the delegation of state power to build and alter airports) to enter into an agreement to engage in a massive alteration of O'Hare without a state permit. Congress cannot confer powers on a political subdivision of a State where the State has expressly limited its delegation of state power to build airports to require a state permit. Congress has no constitutional authority to create powers in an instrumentality of State law (Chicago) when the very authority and power of Chicago to undertake the actions proposed by Congress depends on compliance with--and is contrary to--the mandates of the Illinois General Assembly.
For the reasons discussed below, it is my opinion that the proposed legislation is unconstitutional.Summary of Analysis
The following is a summary of my analysis:
1. Under the governing United States Supreme Court decisions of New York v. United States and Printz v. United States, which are discussed below, the proposed legislation is not supported by any enumerated power and thus violates the limitations of the Tenth Amendment of the Constitution. In these decisions, the Supreme Court held that legislation passed by Congress, purportedly relying on its exercise of the Commerce Power (nuclear waste legislation in New York and gun control legislation in Printz) was unconstitutional because the federal laws essentially commandeered state law powers of the States as instrumentalities of federal policy.
2. The same constitutional flaws afflict the proposed Durbin-Lipinski legislation. Central to the Durbin-Lipinski legislation are two provisions [sections 3(a)(3) and 3(f)] that purport to empower or authorize Chicago (a political instrumentality of the State of Illinois, and thus a city that has no authority or even legal existence independent of state law) to undertake actions for which Chicago has not received any delegation of authority from the State of Illinois and that, in fact, are directly prohibited by Illinois law when the conditions and limitations of the State delegation of authority have not been satisfied.
3. Under Illinois law, Chicago (like any other political subdivision of a State) has no authority to undertake any activity (including constructing airports) without a grant of state authority from the State of Illinois. Under Illinois law, actions taken by political subdivisions of the State
(e.g., Chicago) without a grant of authority from the State, or actions taken by political subdivision in violation of the conditions, limitations or prohibitions imposed by the State in delegating the state authority, are plainly ultra vires, illegal, and unenforceable. The City of Chicago is a creature of state law, not federal law.
4. The power exercised by any state political subdivision
(e.g., the power to construct airports) is in reality a power of the State--not inherent in the existence of the political subdivision. For the political subdivision to have the legal authority to exercise that state power, there must be a delegation of that state power by the State to the political subdivision. Further, it is axiomatic that any such delegation of state power to a political subdivision must be exercised in accordance with the conditions, limitations, and prohibitions accompanying the State's delegation of that power.
5. In the case of airport construction, the Illinois General Assembly has enacted a statute that delegated to Chicago (and other municipalities) the state law power to construct airports explicitly and specifically subject to certain limits and conditions that the General Assembly imposed. One basic requirement is that Chicago must first comply with all of the requirements of the Illinois Aeronautics Act--including the requirement that Chicago first receive a permit (a certificate of approval) from the State of Illinois. the Illinois General Assembly has expressly provided that municipal construction or alteration of an airport without such a state permit is unlawful and ultra vires.
6. Section 3(a)(3) of the Durbin-Lipinski legislation expressly authorizes Chicago to proceed with the ``runway redesign plan'' (a multi-billion dollar modification of O'Hare) without regard to the clear delegation limitations and prohibitions imposed by the Illinois General Assembly on the state statutory delegation to Chicago of the state law power to construct airports. Illinois law explicitly says Chicago has no state law authority to build or alter airports without first complying with the Illinois Aeronautics Act, including the state permitting requirements of Sec. 47 of that Act. Even though Chicago (a political creation and instrumentality of the State of Illinois) has no power to build or modify airports (a state law power) unless Chicago obtains State approval, Section 3(a)(3) purports to infuse Chicago (which has no legal existence independent of state law) with a federal power to build airports and to disregard Chicago's fundamental lack of power under state law to undertake such actions (absent compliance with state law). Like New York v. United States and Printz v. United States the proposed Durbin-Lipinski legislation involved Congress attempting to use a legal instrumentality of a State (i.e., the state power to build airports exercised through its delegated state-created instrumentality, the city of Chicago) as an instrument of federal power. As the Supreme Court held in New York and Printz, the Tenth Amendment--and the structure of ``dual sovereignty'' it represents under our constitutional structure of federalism--prohibits the federal government from using the Commerce power to conscript state instrumentalities as its agents.
7. Similar problems articulated in New York and Printz fatally afflict Section 3(f) of the proposed Durbin-Lipinski legislation. That section provides that, if (for whatever reason) construction of the ``runway design plan'' is not underway by July 1, 2004, then the FAA Administrator (a federal agency) shall construct the ``runway redesign plan'' as a ``Federal Project''. But, Section 3(f)(1) then provides that this ``federal project'' must obtain several agreements and undertakings from Chicago--agreements and undertakings that are controlled by state law, which limits Chicago's authority to enter into such agreements or accept such undertakings. Chicago has no authority under the state law
(which confers upon Chicago the state power to construct airports) to enter into agreements with any third party (be it the United States or a private party) to make alterations of an airport without the state permit required by state statute. Thus, Chicago has no authority under state law to enter into an agreement with the FAA Administrator to have the runway redesign plan constructed by the Federal government because Chicago has not received approval from the State of Illinois under the Illinois Aeronautics Act--a specific condition and prohibition of the delegation of state power (to build airports) to Chicago by the Illinois General Assembly. Just as Chicago (a creation and instrumentality of the State of Illionis) has no power or authority under state law (absent compliance with the Illinois Aeronautics Act) to enter into an agreement for the FAA to construct the runway redesign plan, Chicago also has no power or authority (absent compliance with the Illinois Aeronautics Act) to enter into the other agreements provided for in Sections 3(f)(1)(B) of the Durbin-Lipinski legislation. Again, Section 3(f) is an attempt to have Congress use the Commerce power to conscript state instrumentalities as its agents. Instead of Congress regulating interstate commerce directly (which both New York v. United States and Printz allow), the Durbin-Lipinski legislation seeks to regulate how the State regulates one of its cities (which both New York v. United States and Printz do not allow).
8. The Durbin-Lipinski legislation is not a law of
``general application''. There is a line of Supreme Court decisions which allow Congress to use the Commerce Power to impose obligations on the States when the obligations imposed on the States are part of laws which are ``generally applicable'' i.e., that impose obligations on the States and on private parties alike. See e.g., Reno v. Condon, 528 U.S. 141 (2000) (Federal rule protecting privacy of drivers' records upheld because they do not apply solely to the State), South Carolina v. Baker, 485 U.S. 505 (1988); (state bond interest not immune from nondiscriminatory federal income tax); Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, (1985) (law of general applicability, binding on States and private parties, upheld). But these cases have no application where, as here and in New York and Printz, the Congressional statute is not one of general applicaiton but a specifically directed at the States to use state law instrumentalities as tools to implement federal policy. Here the Durbin-Lipinski legislation is doubly unconstitutional, because it does not apply to private parties or even to all States but only to one State (Illinois) and its relationship to one city
(Chicago). The Durbin-Lipinski legislation proposes to use Chicago (an instrumentality of state power whose authority to construct airports is an exercise of state power expressly limited and conditioned on the limits and prohibitions imposed on that delegation by the Illinois legislature) as a federal instrumentality to implement federal policy. Congress is commandeering a state instrumentality of a single State (Illinois) against the express statutory will of the Illinois Legislature, which has refused to confer on Chicago (an instrumentality of the State) the state law power and authority to build airports unless Chicago first obtains a permit from the State of Illinois. This is an unconstitutional use of the Commerce Power under the holdings New York and Printz and does not fall within the ``general applicability'' line of cases such as Reno v. Condon, South Carolina v. Baker, and Garcia.
analysis
Before discussing any further the specific provisions of the Durbin-Lipinski legislation, let us review some important background law.A. The basic legal principles
Cities are Creatures of the States and State Law--Not Instrumentalities of Federal Power. Normally, this controversy surrounding the proposed expansion of O'Hare Airport would be left to the state political process. Under Illinois law, the cities in this state have only the power that the State Constitution or the legislature grants to them, subject to whatever limits the State imposes. This legal principle has long been settled.
Nearly a century ago, the U.S. Supreme Court, in Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151
(1907) held that, under the U.S. Constitution, cities are merely creatures of the State and have only those powers that the State decides to give the, subject to whatever limits the States choose to impose:
``This court has many times had occasion to consider and decide the nature of municipal corporations, their rights and duties, and the rights of their citizens and creditors.
[Citations omitted.] It would be unnecessary and unprofitable to analyze these decisions or quote from the opinions rendered. We think the following principles have been established by them and have become settled doctrines of this court, to be acted upon wherever they are applicable. Municipal corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the state as may be [e]ntrusted to them. . . . The number, nature, and duration of the powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the state. . . . The state, therefore, at its pleasure, may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the state is supreme, and its legislative body, conforming its action to the state Constitution, may do as it will, unrestrained by any provision of the Constitution of the United States.''
Hunter held that a State that simply takes the property of municipalities without their consent and without just compensation did not violate due process. While Hunter is an old case, it still is the law, and the Seventh Circuit recently quoted with approval the language reprinted here.
The Illinois Aeronautics Act Expressly Limits Chicago's Power to Build and Alter. The State of Illinois has delegated to Chicago the power to build and alter airports. But that power is expressly limited by the requirement that Chicago must comply with the Illinois Aeronautics Act. And the Illinois Aeronautics Act provides that Chicago has no power to make ``any alteration'' to an airport unless it first obtains a permit, a ``certificate of approval,'' from the State of Illinois. Finally, Chicago has not obtained this certificate of approval. That fact is what has led to the proposed federal intervention.B. The federalism problem
As mentioned above, section 3(a)(3) of the proposed federal law overrides the licensing requirements of Sec. 47 of the Illinois Aeronautics Act. This section states:
``(3) The State shall not enact or enforce any law respecting aeronautics that interferes with, or has the effect of interfering with, implementation of Federal policy with respect to the runway redesign plan including sections 38.01, 47, and 48 of the Illinois Aeronautics Act.''
In addition, section 3(f) authorizes Chicago to enter into an agreement with the federal government to construct the O'Hare Airport expansion. This project is called a ``Federal project,'' but Chicago must agree to construct the ``runway redesign as a Federal Project,'' and Chicago provides the necessary land, easements, etc., ``without cost to the United States.''
What this proposed legislation does is authorize the City of Chicago to implement an airport expansion approved by the Administrator of the Federal Aviation Administration. But, under state law, Chicago cannot expand O'Hare because it does not have the required state permit.
There is no doubt that the O'Hare Airport is a means of interstate commerce, and Congress may certainly impose various rules and regulations on airports, including O'Hare. Congress, for example, may decide to require airport security and require that the security agents be federal employees. Or, Congress could provide that it would build and takeover the O'Hare Airport and construct expansion if the State of Illinois refused to do so.
Congress may also use its spending power to take land by eminent domain and then construct or expand an airport, no matter that the state law provides. The limits on the spending clause are few.
But, the proposed law does not take such alternatives. It does not impose regulations on airports in general, nor does it exercise the very broad federal spending power. Nor does the proposed law authorize the federal government take over ownership and control of O'Hare Airport. Instead, it seeks to use an instrumentality of state power (i.e., the state law power to build airports as delegated to a state instrumentality, the city of Chicago) as an exercise of federal power.
The proposed federal law is stating that it is creating a federal authorization or empowerment to the City of Chicago to do that which state law provides that Chicago may not do--expand O'Hare Airport without complying with state laws that create the City of Chicago and delegate to it certain limited powers that can be exercised only if within the limits of the authorizing state legislation.
New York v. United States
The proposed federal law is very similar to the law that the Supreme Court invalidated a decade ago in New York v. United States. The law that New York invalidated singled out states for special legislation and regulated that states' regulation of interstate commerce. The proposed Durbin-Lipinski legislation singles out a State (Illinois) for special legislation and regulates the State's regulation of interstate commerce dealing with O'Hare Airport.
While the law in this area has shifted a bit over the last few decades, it is now clear that Congress can use the Interstate Commerce Clause to impose various burdens on States as long as those laws are ``generally applicable.'' The federal law may not single out the State for special burdens. For example, Congress may impose a minimum wage on state employees in, or affecting, interstate commerce as long as Congress imposes the same minimum wage requirements on non-state workers in, or affecting, interstate commerce. Congress can regulate the States using the Commerce Clause if it imposes requirements on the States that are generally applicable--that is, if it imposes the same burdens on private employers. Congress cannot single out the States for special burdens; it cannot commandeer or take control over the States or order a state legislature to increase the home rule powers of the City of Chicago; it cannot enact federal legislation that adds to or revises Chicago's state created and limited delegated powers.
The leading case, New York v. United States, held that the Commerce Clause does not authorize the Federal Government to conscript state governments as its agents. ``Where a federal interest is sufficiently strong to cause Congress to legislate, it must do so directly; it may not conscript state governments as its agents.'' The proposed Durbin-Lipinski legislation will do exactly what New York prohibits: it will conscript the City of Chicago as its agent and interfere with the relationship between the State of Illinois and the entity it created, the City of Chicago.
New York invalidated a legislative provision that is strikingly similar to the proposed federal Durbin-Lipinski legislation. The Court, in the New York case, considered the Low-Level Radioactive Waste Policy Amendments Act of 1985. Congress was concerned with a shortage of disposal sites for low level radioactive waste. The transfer of waste from one State to another is obviously interstate commerce. Congress, in order to deal with the waste disposal problem, crafted a complex statute with three parts, only one of which was unconstitutional. There were a series of monetary incentives, which the Court unanimously upheld under Congress' broad spending powers. Congress also authorized States that adopted radioactive waste and storage disposal guidelines to bar waste imported from States that had not adopted certain storage and disposal programs. The Court, again unanimously, relied on long-settled precedent that approves of Congress creating such trade barriers in interstate commerce.
Then the Court turned to the ``take title'' provisions and held (six to three) that they were unconstitutional. The
``take title'' provision in effect required a State to enact certain regulations and, if the State did not do so, it must
(upon the request of the waste's generator or owner), take title to and possession of the waste and become liable for all damages suffered by the generator or owner as a result of the State's failure to promptly take possession.
The Court explained that Congress could, if it wished, preempt entirely state regulation in this area and take over the radioactive waste problem. But Congress could not order the States to change their regulations in this area. Congress lacks the power, under the Constitution, to regulate the State's regulation of interstate commerce. This is what the proposed federal O'Hare Airport bill will do: it will regulate the State's regulation of interstate commerce by telling the State that it must act as if the City of Chicago has complied with the Illinois Aeronautics Act and other state rules.
In a nutshell, Congress cannot constitutionally commandeer the legislative or executive branches. The Court pointed out that this commandeering is not only unconstitutional (because nothing in our Constitution authorizes it) but also bad policy, because federal commandeering serves to muddy responsibility, undermine political accountability, and increase federal power.
The proposed Durbin-Lipinski legislation prohibits Illinois from applying its laws regulating one of its cities. The proposed federal law also authorizes the federal government to make an agreement with Chicago, pursuant to which Chicago will assume some significant obligations, even though present state law gives Chicago no authority to engage in this activity. As the six to three New York decision made clear:
``A State may not decline to administer the federal program. No matter which path the State chooses, it must follow the direction of Congress. . . . No other federal statute has been cited which offers a state government no option other than that of implementing legislation enacted by Congress. Whether one views the take title provision as lying outside Congress' enumerated powers, or as infringing upon the core of state sovereignty reserved by the Tenth Amendment, the provision is inconsistent with the federal structure of our Government established by the Constitution.''
The proposed Durbin-Lipinski legislation is very much like the law that six justices invalidated in New York. The O'Hare bill provides that, no matter what the State chooses, ``it must follow the direction of Congress.'' The State has ``no option other than that of implementing legislation enacted by Congress.''
The Court in New York went on to explain that there are legitimate ways that Congress can impose its will on the states:
``This is not to say that Congress lacks the ability to encourage a State to regulate in a particular way, or that Congress may not hold out incentives to the States as a method of influencing a State's policy choices. Our cases have identified a variety of methods, short of outright coercion, by which Congress may urge a State to adopt a legislative program consistent with federal interests. Two of these methods are of particular relevance here.''
The Court then discussed those two alternatives. First, there is the spending power, with Congress attaching conditions to the receipt of federal funds. The proposed Durbin-Lipinski legislation rejects the spending power alternative. Second, ``where Congress has the authority to regulate private activity under the Commerce Clause, we have recognized Congress' power to offer States the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation.'' The proposed Durbin-Lipinski legislation rejects that alternative as well. It does not propose that Congress directly takeover and expand O'Hare Airport. Instead, it proposes that the City of Chicago be allowed to exercise power that the State does not allow the City to exercise.
New York v. United States did not question ``the authority of Congress to subject state governments to generally applicable laws.'' But Congress cannot discriminate against the States and place on them special burdens. It cannot commandeer or command state legislatures or executive branch officials to enforce federal law. Congress can regulate interstate commerce and States are not immune from such regulation just because they are States. For example, Congress can forbid employers from hiring child labor to work in coal mines, whether a private company or a State owns the coal mine and employs the workers.
Printz v. United States. Following the New York decision, the Court invalidated another federal statute imposing certain administrative duties on local law enforcement officials, in Printz v. United States. The Brady Act, for a temporary period of time, required local law enforcement officials to use ``reasonable efforts'' to determine if certain gun sales were lawful under federal law. The federal law also ``empowered'' these local officers to grant waivers of the federally prescribed 5-day waiting period for handgun purchases. Note that the proposed Durbin-Lipinski legislation will also ``empower'' the City of Chicago to do that which Illinois does not authorize the city to do.
To make the analogy even more compelling, the chief law enforcement personal suing in the Printz case said that state law prohibited them from undertaking these federal responsibilities. That, of course, is the exact position in which Chicago finds itself. State law prohibits Chicago from entering into and committing to these federal responsibilities (e.g., the agreements between Chicago and the FAA in Sec. 3(f) of the proposed Durbin-Lipinski legislation call for construction as a ``federal project'' but then require Chicago to either construct or allow construction without a permit from the State of Illinois).
We should realize that the proposed Durbin-Lipinski legislation--in commanding and singling out the State of Illinois to, in effect, repeal its legislation governing the powers delegated to the City of Chicago--is quite unusual and not at all in the tradition of federal legislation. For most of our history, Congress would explicitly only ``recommend'' or ``request'' the assistance of the governors and state legislatures in implementing federal policy. It is only in very recent times that Congress has sought explicitly to commandeer or order the legislative and executive branches of the States to implement federal policies. Because such federal legislative activity is recent, the case law in this area is recent, but the case law is clear in prohibiting this type of federal assertion of power.
New York v. United States held that Congress cannot
``command a State government to enact state regulation.'' Congress may regulate interstate commerce directly, but it may not ``regulate state governments' regulation of interstate commerce.'' The Federal Government may not
``conscript state governments as its agents.'' Congress has the ``power to regulate individuals, not States.''
In short, there are important limits on the power of the federal government to commandeer the state legislature or state executive branch officials for federal purposes. Another way to think about this issue is that, to a certain extent, the Constitution forbids Congress from imposing what recently have been called ``unfunded mandates'' on state officials. Congress cannot simply order the States or state officials or a city to take care of a problem. Congress can use its spending power to persuade the States by using the carrot instead of the stick.
While there are those who have attacked the restrictions that New York v. United States have imposed on the Federal Government, it is worth remembering the line-up of the Court in Maryland v. Wirtz when the justices first considered this issue. That case rejected the applicability of the Tenth Amendment and held that it was constitutional for Congress to set the wages, hours, and working conditions of employees, including state employees in interstate commerce. However, Justice Douglas, who was joined by Justice Stewart, dissented. Douglas found the law to be a ``serious invasion of state sovereignty protected by the Tenth Amendment'' and ``not consistent with our constitutional federalism.'' He objected that Congress, using the broad commerce power, could ``virtually draw up each State's budget to avoid `disruptive effect[s]' '' on interstate commerce. New York v. United States prevents this result.
The ``generally applicable'' restriction is important, and it explains Reno v. Condon. Congress enacted the Driver's Privacy Protection Act (DPPA), which limited the ability of the States to sell or disclose a driver's personal information to third parties without the driver's consent. Chief Justice Rehnquist, for a unanimous Court, upheld the law as a proper regulation of interstate commerce and not violating any principles of federalism found in New York v. United States or Printz because the law was ``generally applicable.''
Reno grew out of a congressional effort to protect the privacy of drivers' records. As a condition of obtaining a driver's license or registering a car, many States require drivers to provide personal information, such as name, address, social security number, medical information, and a photograph. Some States then sell this personal information to businesses and individuals, generating significant revenue. To limit such sales, Congress enacted the DPPA, which governs any state department of motor vehicles (DMV), or state officer, employee, or contractor thereof, and any resale or re-disclosure of drivers' personal information by private persons who obtained the information from a state DMV. The Court concluded: ``The DPPA's provisions do not apply solely to States.'' Private parties also could not buy the information for certain prohibited purposes nor could they resell the information to other parties for prohibited purposes, and the States could not sell the information to the private parties for certain purposes if the private parties could not buy it for those purposes.
Unlike the law in New York, the Court concluded that the DPPA does not control or regulate the manner in which States regulate private parties, it does not require the States to regulate their own citizens, and it does not require the state legislatures to enact any laws or regulations. Unlike the law in Printz, the DPPA does not require state officials to assist in enforcing federal statutes regulating private individuals. This DMV information is an article of commerce and its sale or release into the interstate stream of business is sufficient to support federal regulation.
The DPPA is a ``generally applicable'' federal law regulating commerce because it regulates the universe of entities that participate as suppliers to the market for motor vehicle information--the states as initial suppliers and the private resellers or redisclosers of this information. ``South Carolina has not asserted that it does not participate in the interstate market for personal information. Rather, South Carolina asks that the DPPA be invalidated in its entirety, even as applied to the States acting purely as commercial sellers.''
Conclusion
The proposed federal law dealing with the O'Hare Airport expansion is most likely unconstitutional because it imposes federal rules on the relationship between a city and the State that created the city. It subjects Illinois to special burdens that are not generally applicable to private parties or even to other States. It authorizes the City of Chicago to do that which Illinois now prohibits.
There is no escape from the conclusion that the proposed federal law does not regulate the behavior of private parties in interstate commerce. It does not subject the State of Illinois to ``generally applicable'' legislation. Instead, Congress is regulating the state's regulation of interstate commerce. Congress may not conscript the instrumentalities of state government and state power as tools of federal power. The case law is clear that Congress does not have this power.
Sincerely,
Ronald D. Rotunda,The Albert E. Jenner, Jr. Professor of Law.
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Chicago Is Not an Agency of the Federal Government
(By Ronald D. Rotunda)
Congress is at it again. The Senate Commerce Committee has cleared a bill that would, in effect, enlist Chicago as an agency of the federal government. The immediate dispute involves O'Hare Airport, but the underlying constitutional issue affects us all. The question is whether there should be a major expansion of O`Hare, or a new airport. That decision has been entrusted to Chicago, a city created under Illinois law. But the state placed an important condition on Chicago's power to expand O'Hare. First, the city has to secure a state permit.
That's the rub. Some people who favor the expansion don't want Chicago to comply with the state permit requirement, so they urged Congress to enact legislation that authorizes Chicago to do what state law forbids. Enter the U.S. Constitution. For over two centuries, the federal government has had the power to regulate interstate commerce. After the terrorist attacks, for example, Congress relied on that power to federalize airport security. Notably, Congress didn't deal with the problem by ordering state and city police to take over security and pay the bills. That's because the federal government knew it could not regulate by conscripting state or city governments as its agents.
Congress acknowledged that fundamental principle in 1789, the very year that the Constitution was ratified. The First Congress enacted a law that requested state assistance to hold federal prisoners in state jails at federal expense. The law did not command the states' executives, but merely recommended to their legislatures, and offered to pay 50 cents per month for each prisoner. When Georgia refused, Congress authorized the U.S. marshal to rent a temporary jail until a permanent one could be found. It never occurred to Congress that it could make city or state officials its minions by instructing them to act as if they were federal employees.
All this changed a little over a decade ago, when Congress has to decide how to dispose of radioactive waste. Rather than handle the matter directly, it chose a low-cost solution: it simply ordered the states to take care of the problem. The law required the states to take title to radioactive waste that private parties had generated, and be responsible for its disposal, at not cost to the federal government. In 1992, the Supreme Court invalidated the law, calling it an unprecedented effort by the federal government to co-opt legislative and executive branch officials of state government.
A few years later, Congress mandated background checks in connection with gun purchases. It didn't want to spend federal money for bureaucrats to enforce the new law, so it told city and state law enforcement personnel to carry out the background checks. Printz v. United States invalidated that portion of the federal law. The Supreme Court explained that city and state officials do not work for the federal government; they work for the state. Cities are creatures of state law, and they have only the powers that the state chooses to give them.
Federalism, the Court tells us, exists to protect the people by dividing power between the states and the federal government. That protection is undermined if Congress can bypass the federal bureaucracy by directing state or city officials to do its bidding. The Court added that allowing Congress to treat state officials as its worker bees is bad policy because it muddies responsibility, weakens political accountability, and increases federal power.
The Constitution gives Congress plenty of ways to deal with O'Hare, but they all cost money: Congress can use its spending power to expand the airport; it can give the state money on the condition that it expand the airport; it can order federal officials (the Army Corps of Engineers) to build the O'Hare expansion. But Congress may not simply order or authorize state or city officials to violate state law and act like federal employees. The proposed federal law dealing with the expansion of O'Hare Airport subjects Illinois to special burdens that are not applicable to other states or to private parties, and it authorizes Chicago, a city created by the state, to do that which Illinois law prohibits.
Justice Sandra Day O'Connor, speaking for the Court in 1992, put it bluntly: ``Where a federal interest is sufficiently strong to cause Congress to legislate, it must do so directly; it may not conscript state [or city] governments as its agents.''
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A Controller's View
Ladies and gentlemen; I have proudly served the FAA for the past 14 years as an Air Traffic Controller. I have been employed at several air traffic control facilities throughout the Chicagoland area, and feel that I have a unique perspective on enhancing future airport development.
To date, most of you have heard numerous insights on a proposed third major airport for Chicago. Let me offer another perspective from a ``controller's viewport''. Within a small twenty-mile radius of the Chicagoland area, lie four of the busiest airports in the country. Approximately one and one half million airplanes take off and land at Palwaukee, Dupage, Midway, and O'Hare Airports yearly! This puts a tremendous strain on the Air Traffic Controllers who struggle to keep this area safe and without significant delay. With air travel continuously increasing, delays and safety will become a nearly impossible challenge.
Plans for expansion at the two major Chicago airports will not be enough to meet demands. O'Hare airport has reached its maximum capacity creating consequential delays. There are not enough available gates, runways, and taxiways to serve all the aircraft. Although there are plans to add additional gates and another runway, this will not address the taxiway problem. Due to the layout of O'Hare airport, in my opinion there is no effective way to construct additional taxiways that will have a positive impact on airport operations. Thus making any other method to increase capacity ineffective.
The problems that face O'Hare are some of the same problems facing Midway Airport. Midway boasts as being aviation's busiest square mile. Nowhere else are there more commercial airplanes landing and departing in such a condensed area. Unfortunately, Midway Airport is very condensed. Due to runway lengths, it can only handle the smallest commercial aircraft. The airport is severely landlocked with major streets, houses and businesses immediately surrounding the field. Even with the current terminal expansion project in effect, an insufficient number of taxiways and the size of the runways, in my opinion limit any significant increase in traffic.
The need for a third major airport is loud and clear. With the projections of air traffic on the rise, additional airports must become available. In my opinion, Peotone is an excellent location for a major commercial airport. Peotone is located just outside the main flow of air traffic in and out of Chicago. Any additional airplanes created by the third airport would not adversely effect air traffic facilities located east, south, and west of Peotone. A third airport located in Peotone would not be significantly effected by Chicago's air traffic, which is rapidly reaching a saturation point, but instead would aid in alleviating the congestion heading into Chicago.
Another point of interest, which may have been overlooked, is corporate aircraft. The use of corporate aircraft is one of the fastest growing fields in aviation. There are very few, if any airports that can accommodate corporate aircraft in the south Chicagoland area. With the pending closure of Meigs Field in Chicago, the Petone airport would fill the need for another corporate airport crucial to south Chicagoland businesses. Furthermore, suggestions that a third major airport being located in the immediate Chicagoland area, namely Gary, Indiana, would not alleviate the saturation problem Chicago is already facing.
In closure, I would like to thank all those involved with the Petone Airport project. I am greatly anticipating the future events surrounding this project.
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John W. Teerling,
Lockport, IL, January 18, 1999.Re A Third Chicago Airport.Governor George Ryan,State Capitol, Springfield, IL.
Dear Governor Ryan: My name is John Teerling and I recently retired, after 31.5 years with American Airlines as a Captain, flying international routes in Boeing 767 and 757's. I was based at Chicago's O'Hare my entire career. I have seen the volume of traffic at O'Hare pick up and exceed anyone's expectations, so much so, that on occasion mid-airs were only seconds apart. O'Hare is at maximum capacity, if not over capacity. It is my opinion that it is only a matter of time until two airliners collide making disastrous headlines.
Cities like Atlanta, Dallas and especially Miami continue to increase their traffic flow, some months exceeding Chicago, and at some point could supersede Chicago permanently. If Chicago and Illinois are to remain as the major Hub for airline traffic, a third major airport has to be built, and built now. Midway, with its location and shorter runways will never fill this void. A large international airport located in the Petone area, complete with good ground infrastructure (rail and highway) to serve Chicago, Kankakee, Joliet, Indiana and the Southwest suburbs, would be win, win situation for all. The jobs created for housing, offices, hotels, shopping, manufacturing and light industry could produce three to four hundred thousand jobs. Good paying jobs.
Another item to consider, which I feel is extremely important, is whether. I have frequently observed that there are two distinct weather patterns between O'Hare and Kankakee. Very often when one is receiving snow, fog or rain the other is not. These conditions affect the visibility and ceiling conditions determining whether the airports operate normally or not. Because of the difference in weather patterns when one airport, say O'Hare, is experiencing a hampered operation, an airport in Peotone, in all probability, could be having more normal operations. Airliners could then divert to the ``other'' Chicago Airport, saving time and money as well as causing less inconvenience to the public. (It's better to be in Peotone than in Detroit).
It is well known that American and United, who literally control O'Hare with their massive presence, are against a third airport, Why? It is called market share competition and greed. A new airport in the Peotone area would allow other airlines to service Chicago and be competition. American and United are of course dead set against that. What they are not considering is that their presence at a third airport would afford them an even greater share of the Chicago regional pie as well as put them in a great position for future expansion.
You also have Mayor Daley against a third airport because he feels a loss of control and possible revenue for the city. This third airport, if built, and it should be, should be classified as the Northern Illinois Regional Airport, controlled by a Board with representatives from Chicago and the surrounding areas. That way all would share in the prestige of a new major international airport along with its revenues and expanding revenue base.
The demand in airline traffic could easily expand by 30% during the next decade. Where does this leaves Illinois and Chicago? It leaves us with no growth in the industry if we have no place to land more airplanes. If Indiana were ever to get smart and construct a major airport to the East of Peotone, imagine the damaging economic impact it would have on Northern Illinois!
Sincerely,John W. Teerling.
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The Future of the Chicago Region: Smart Growth, Infill Redevelopment and Regional Balance
The Midwest and, in particular, the Chicago Metropolitan Area, has had a remarkable turnaround in economic fortune over the past decade. It has shed its ``rust-belt'' image and has produced remarkable economic growth.
Between 1990 and 1998, the six-county Chicago area grew by 505,500 persons, a 7 percent increase. While this percent increase is moderate, the numerical increase is equivalent to a city larger than Denver.
Between 1990 and 1997, the six-county area grew by 275,000 jobs, a 9 percent increase. Between 1970 and 1996, the region
(Kenosha to Michigan City) grew by 1.310 million jobs, the fifth largest increase in the nation.
Between 1996 and 2020, the Chicago region is projected to grow by 785,000 persons. This is a city the size of San Francisco.
Between 1996 and 2020, the Chicago region is projected to have the largest growth of any metro area in the U.S., adding 1.118 million jobs.
In spite of these significant regional turnarounds, the City of Chicago continued to lose ground. Between 1991 and 1997, the City of Chicago lost over 27,000 jobs; 11,0000 were from the South Loop. Every one of the City's eight major community areas experienced losses, with the exception of North Michigan Avenue and the Northwest area around O'Hare International Airport. The Far South, Southwest and South communities experienced the greatest losses.
This development trend extended to the suburban area. While the six-county Chicago Area grew by 275,000, the north and northwest suburbs were the major beneficiaries. DuPage, Lake and Northwest Suburban Cook (around O'Hare) Counties contributed 194,000 jobs, or 71 percent of the net growth. With 500,000 jobs in Chicago's Central Business District versus 450,000 in North Suburban Cook County and 150,000 in Northeast Du Page County, the economic center of the region has shifted from downtown to O'Hare.
O'Hare International Airport is, undoubtedly, the great economic engine it is portrayed. But, it has run out of space, both in the air and on the ground. Its enormous attraction, to business and industry, has brought thousands of enterprises, hundreds of thousands of jobs, millions of visitors and billions of dollars, annually, to the Chicago region. On this, we all agree. But, the area surrounding it is choking on the development. Other areas, particularly the South Side, are in great need of both jobs and better airport access. In fact, the two issues are closely related.
The massive development attracted by O'Hare Airport makes airport expansion there costly, time-consuming, difficult and intrusive. Traffic often is brought to a near halt on the expressways leading to O'Hare; future traffic problems would be compounded many times over. O'Hare's neighbors--well-aware of its many economic contributions--also are wary of expansion, weary of noise and traffic, and fearful of possible future compromises on safety. On the opposite side of the region--and the other side of the ledger--are the communities of the Chicago South Side and the South Suburbs. By all accounts, these areas find themselves overlooked and under-served--primarily due to their distance from the region's airports. This economic disparity is clearly evident from the following maps, which show job concentrations in 1960 and 1990. This period marked major declines in manufacturing jobs in the region's South Side; and a rise in both manufacturing and service jobs in the North/Northwest, around O'Hare. Airport access was the difference.
The solution to the region's needs is the Third Chicago Airport. Development of the Third Chicago Airport is a true urbanist's dream: obtaining multiple benefits from one investment. Why, then, is it being ignored? When you have two powerful and thoughtful representatives of the people--Congressman Henry Hyde saying ``we've had enough,'' and Congressman Jesse Jackson, Jr. saying ``let us have some--perhaps we should listen to them. Other representatives--Congressmen Jerry Weller, Bobby Rush, and Tom Ewing, Senator Peter Fitzgerald, Governor George Ryan, Senate President Pate Phillip--plus scores of local mayors, hundreds of local businesses and hundreds of thousands of residents, have joined in the effort to bring the airport to the South Suburbs. Perhaps, with the airport in place, we can begin to truly balance growth, encourage infill development and share the wealth of the region.
the planning process: twelve years of findings
The state agency responsible for planning the region's transportation infrastructure, the Illinois Department of Transportation (IDOT), has been planning for the region's aviation needs for the past twelve years. IDOT, and its aviation consultants, are convinced, without a doubt, that Chicago's aviation demands will more than double by 2020. The Federal Aviation Administration (FAA), the Airports Council International (ACI) and other industry groups have forecasted national growth of similar magnitude. For a brief time, the City of Chicago agreed, as well. The Chicagoland Chamber study predicts a five-fold increase in international traffic. IDOT's studies support the contention that Chicago has an excellent opportunity to be the dominant North American hub for international flights, as well as its premier domestic hub, into the next century. That point has been stated and documented on many occasions by IDOT. The State's forecasts have been corroborated, independently, by a decade of observations. They are reinforced in the latest study for the Chicagoland Chamber of Commerce. It is agreed, by all key interest groups, that the Chicago region must increase its aviation capacity.
The region cannot double its aviation service without building major new airport capacity. O'Hare and Midway are now at capacity. Enplanements already are being affected, with growth limited to increases in plane size or load factor; neither is expected to increase further. The City's
$1.8 billion investment in terminals will not increase capacity. But, the adverse impact on the region already is evident. Businesses and residents are witnessing major increases in fares in the Chicago region, according to IDOT, the USDOT, the GAO and the FAA, itself. Perhaps in response to these obvious constraints, both the Chicagoland Chamber and the Commercial Club of Chicago have begun to address the region's aviation issues. The Chamber calls for O'Hare expansion. The ``Metropolis 2020'' study also recognizes the need for additional aviation capacity, with a call for expansion of O'Hare and land banking of the Third Airport site in Peotone. This call for action comes none too soon. There are many indications that the Chicago region has begun to suffer from capacity constraints.
Ten years ago, Chicago was one of the nation's least expensive regions to fly to, due to its central location. Obviously, its location has not changed; however, now, due to O'Hare's capacity overload and higher fares, it is cheaper to fly from all around the country to many other cities than to Chicago. For instance, according to data supplied by the airlines to the U.S. Department of Transportation, it is now cheaper to fly from Green Bay to Las Vegas than from Green Bay to Chicago. It is cheaper to fly from Seattle to Orlando than from Seattle to Chicago. Something is wrong. Due to capacity constraints, O'Hare's airlines are over-charging their patrons by $750 million, annually (the difference between average fares for large U.S. airports and those at O'Hare). This fact is beginning to affect regional development--especially conventions and tourism--but, it also affects every major and start-up business, every individual with family and friends in far-flung places. As is well-known, access to a major airport is one of the top three requirements of a locating or expanding business. But, access must be at competitive fares. Expanding O'Hare will simply buttress the monopolistic behavior of its airlines. Such monopolistic practices currently are a major concern of Congress.
the development alternatives
Aviation infrastructure must be expanded--and expanded soon--to bring true competition, lower fares and increased service to the region. The alternatives are two: adding runways to O'Hare; or building the Third Chicago Airport. The two alternatives have far different consequences. The question is: ``Will we continue to spend great outlays of public-private funds on an area that is overwhelmed with both riches and the congestion those riches bring; or do we make those investments in mature urban areas that are wanting for jobs and economic development? ''
As is clearly documented by a recent Chamber study, O'Hare's benefits are conferred, primarily, on the west, north and northwest suburbs. Virtually all of O'Hare's employees reside near it. In addition, it has garnered high concentrations of development. These concentrations, however, have led to congestion and increased land values. High land prices have forced businesses and developers to plan future growth on the most environmentally-sensitive fringes of the region and in areas farther removed from the region's central core.
the two sides of the coin
While unprecedented growth takes place around O'Hare, to the north, the three million residents of the region who reside south of McCormick Place are left with long trips to the airport for flights and out of the running for the many jobs it produces. The consequences, for South Side/South Suburban residents and the dwindling businesses that serve them, are the highest property tax rates in the State. Because jobs have disappeared, residents have some of the longest trips to work in the nation. Because transit only to the Loop is convenient, recent job losses in that area, as well, (11,000 since 1991; 25,000 since 1983) have compounded the job searches of the South Side's residents. For decades, regional planning agencies have called for the development of moderate-income housing near job concentrations. Instead, let us bring the jobs to the residents.
Recent public forums on the disparity of property tax rates in Cook County's north and south communities have led to the South's designation as the ``Red Zone,'' signifying its concentration of highest property tax rates. This disparity was not always so. It has occurred over the last three decades and proliferated in the last two, as shown below. The
``Metropolis 2020'' study addresses this disparity issue by calling for a sharing of revenues with the ``lesser haves.'' The more-responsive, enduring and--ultimately--more-equitable solution is to provide the South Side with the Economic opportunities generated by the Third Chicago Airport.
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Whether the region expands O'Hare or builds a supplemental airport, O'Hare's riches will remain and grow. It is currently enjoying a $1 billion public investment to upgrade its terminals. Midway, as well, will continue to thrive, as the recipient of an $800-million-publicly-funded new terminal. However, this $1.8 billion investment will not increase capacity. The initial infrastructure investment of
$500 million ($2.5 billion through 2010) to build the Third Chicago Airport, will. And, it will produce more than just added aviation capacity. The Third Chicago Airport will provide 235,000 airport-relate jobs--in the right places--by 2020. Additional airport access jobs will benefit the entire region. In addition, it will reinforce the City of Chicago's role as the center of the region's growth.
Spokesmen for the incumbent airlines claim that other airlines will not invest in the Third Chicago Airport; this is a traditional response to discourage competition. Furthermore, the financing of any airport comes, principally, from its users. The Third Chicago Airport market comprises 16.5 percent of the region's current air trip users, with a potential for contributing 20 percent. They should not be left behind. Upfront airport development costs, for planning and engineering and land acquisition traditionally have come from the federal government. In this ``Year of Aviation'', these funds are expected to increase by 50 percent; and Passenger Facility Charges (PFC's) are expected to increase from $3 to $6. Currently, $1 in PFC's at O'Hare yields $37 million per year. At the Full-Build forecast and $6 rate, the Third Chicago Airport will generate $100 million in PFC's annually by 2010. The FAA must provide the needed approvals and normal up-front funding. A Third Airport development in the Sought Suburbs can provide social and economic parity; and it can do it with a hand-up rather than a hand-out.
the argument for smart growth with chicago's third airport
Independent studies have demonstrated overwhelmingly, the need for expanded aviation capacity in the Chicago region.
Demand will more than double by 2020.
Needed is a Third Airport that can grow as future demand dictates.
The need is now. The region is beginning to experience the costs of capacity constraints. These are:
Dampended aviation growth.
Increased and non-competitive fares.
Lost jobs, conventions and other opportunities.
There are two alternatives for meeting the region's demand:
Adding runways at O'Hare--an area already well-served and suffering the effects of overdevelopment and congestion, or;
Building the Third Chicago Airport--investing in an existing, mature part of the region suffering losses due to changes in the national/regional economies and lack of access to a major airport.
Doubling traffic at O'Hare drives new development farther away from the region's core--the Chicago Central Area--and its residents and businesses to the South.
It will encroach on environmentally-sensitive areas.
It will compound noise, pollution and traffic congestion; and impose these on hundreds of thousands of additional residents.
It will buttress monopolistic behavior by major airlines.
Building the Third Chicago Airport is a true urbanist's dream. It solves multiple problems with one investment.
It develops an environmentally-sensitive, new airport, that can provide increased capacity for decades to come.
It provides nearby, inexpensive land for development.
It brings jobs and development to mature portions of the region.
It allows three airport facilities to function at optimal capacity.
It maintains the Chicago region as the nation's aviation capital.
Because of planning already completed, the Third Chicago Airport can be built before additional runways at O'Hare.
Resources are available to build the airport.
Federal Funds for airport development will increase by 50 percent.
The U.S. Congress, many businesses and consumers are demanding access to and through the Chicago area.
Ultimately, the passenger pays through Passenger Facility Charges.
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The Growing Imbalance in the Region's Growth, and Access to Jobs
1. The Chicago region has grown robustly over the past 25-30 years.
Over 1.310 million jobs (1970-96) for the consolidated area.
Over 275,000 jobs between 1990 and 1997, alone, for the six-county area.
2. This growth has been very uneven. The North has prospered, while the South has languished.
3. The region's center has migrated from Downtown Chicago
(with its excellent public transportation access) to the area around O'Hare (dependent on autos).
4. The City of Chicago lost over 27,000 jobs between 1991 and 1997; 11,000 of these losses were from the South Loop.
5. The suburbs grew by 300,000 jobs. The areas to the north, northwest and west (O'Hare-influenced) contributed nearly 200,000 of this growth.
6. With 500,000 jobs in Chicago's CBD, versus 450,000 in North Suburban Cook and 150,000 in Northeast DuPage, the economic center of the region has shifted from Downtown to O'Hare.
7. Consequently, residents of the South Side and South Suburbs have commutes to work that are among the nation's longest. There is little public transit between suburbs.
8. These same residents do have the region's highest tax rates, however; without businesses and industries, the residents, alone, must pay for all their services.
9. New businesses and industries want access to major airports. O'Hare's nearby communities have run out of space to offer. The South Side has ample land, but no airport. The ample land also allows the construction of an environmentally-sensitive airport.
10. To accommodate the economic growth anticipated over the next 20 years, the Chicago region needs additional airport capacity. To balance the economic growth, it needs a South Suburban Airport.
south suburban airport: aviation demand in the chicago region
Background Assumptions for Demand Forecasts
Aviation demand is derived from a few basic factors:
The national/international growth in aviation.
The socio-economic dynamics and growth of the region.
The location/desirability of the region for providing connecting flights.
The ability of the region to accommodate this demand depends on:
The capacity of its airports.
The competitiveness of its fares.National/International Aviation Growth
The FAA forecasts a doubling in aviation growth over a 15 year period.
International enplanements and freight are growing even more rapidly.
The FAA and the Airports Council International have equated this growth to 10 O'Hare Airports.
By 2012, there will be more than 1 billion enplanements, 2 billion passengers in the U.S..Socio-Economics Create Demand
Since the original aviation forecasts, made in 1994, the socio-economic performance of the Chicago region has matched or exceeded expectations:
In 1990-1996, population and employment for the 14- and 9-County regions grew at rates and volumes slightly above those forecast.
The Chicago Consolidated Area (Kenosha to Michigan City) produced 1,311,000 jobs between 1970 and 1996; and added 617,260 persons.
The regional planning agencies have increased their 2020 forecasts, to reflect this growth. So has NPA, author of forecasts used by City of Chicago.
Woods & Poole Economics (the national forecast used by IDOT), in its 1999 edition, expects the Chicago region to produce the largest volume growth in employment of any metropolitan region in the U.S.:--for 1996-2020, a 1,118,660 job growth--for 1990-2020, a 1,635,570 job growth
Chicago's economy an continue its robust growth only if it can provide excellent aviation access. And it, can serve the region fairly, only if it provides that access to the south suburbs.Location Drives Connecting Flights
Becuase of its central location and high concentration of jobs and population, the Chicago region is a critical location for connecting flights:
The recent Booz-Allen study, prepared for the City, forecasts an international growth that is higher than IDOT's; and claims that high ratios of connecting to O/D are not just desirable, but necessary.
The City of Chicago, in 1998, forecast connecting enplanements based on regional location; their connecting forecasts were higher than IDOT's.
O'Hare's current connecting is 54.7%, slightly under its past average. IDOT assumed 50% connecting for O'Hare in 2001; 51% for the region.Aviation Growth Parallels IDOT Forecasts
Since their national forecasts of 1994 (base for IDOT forecast), the FAA has generated five 12-year forecasts, five long-range national forecasts though 2020, and five terminal area forecasts.
All the FAA national forecasts are higher than the study's base forecast.
Although it continues to contest IDOT's forecasts, the City and Chicago and its consultants are using forecasts that are nearly identical.
The City and State are using IDOT socio-economic and aviation forecasts for all short- and long-term regional transportation planning.
Other aviation plans (Gary Airport Master Plan; Booz-Allen forecasts for O'Hare International) are consistent with IDOT forecasts.Capacity Constraints Jeopardize Economic and Aviation Growth
The ability of the region's airports to accommodate demand is a most-serious concern. The Chicago region has reached aviation capacity. These aviation capacity constraints have dampened regional growth:
Since 1995, O'Hare's growth in commercial operations has stopped.
Domestic enplanements at O'Hare have declined this year.
Small cities have been dropped from service.
Booz-Allen says the international market is not being well served.
Fares at O'Hare have risen above the average for large airports.
O'Hare's delays have been much greater this year than last; O'Hare's delays are among the nation's highest and cascade throughout the nation's airports.
The FAA has long forecasted such capacity problems and resultant delays. In 1992 it forecasted a doubling of airports with delay problems by 2001.
The forecasts have arrived a bit ahead of schedule. Without additional capacity, the economic well-being of both Chicago and the nation are jeopardized.
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NIPC Findings--November 1996
talking about the region's future
We recently asked a cross-section of the region's leaders:
Should water quality protection measures for our rivers, lakes, and streams be implemented even if this means placing development limits on presently undeveloped high-quality watersheds?
Should the region pursue infill and redevelopment strategies that lead to employment and income growth in older communities that have experienced diminished tax base and disinvestment?
Should priority in transportation funding be given to maintenance of the existing system?
Should measures to encourage reclamation of contaminated properties, including tax credits and limits on liability, be enacted?
Yes, said strong majorities of participants in two public workshops conducted by NIPC in June and September of this year. The workshops were held as part of an effort to engage the region in a discussion of growth choices facing us. Participants representing local governments, state and federal agencies, and civic and community organizations were asked to respond to possible future development patterns, their probable consequences, and the tools it would take to bring them about. The broad choice which framed the discussions was this: should anticipated future growth continue along the path of past trends or should efforts should be made to moderate the physical decentralization of the region?
NIPC is not alone in the region in raising these issues. In fact, it is hard to remember a time when the future development of the region has been discussed more widely or fervently. Numerous civic and community organizations have been developing analyses and recommendations on transportation and development and encouraging discussion of regional issues by their members and constituents.
The Commission's immediate purpose in conducting the workshops was to seek public guidance in the development of new demographic forecasts for the region. These forecasts will be used in the preparation of the Regional Transportation Plan for 2020. Draft forecasts will be completed by early 1997. At the same time, the Chicago Area Transportation Study (CATS) will complete a draft transportation plan. After a period of public review, the transportation plan will be tested for conformity with the requirements of the Clean Air Act. Following additional opportunity for public comment, final forecasts will be endorsed and the Regional Transportation Plan for 2020 will be adopted. These actions are scheduled for June 1997.
Beyond the immediate need to support the transportation planning process, this regional discussion advances NIPC's mission of striving for consensus on policies and plans for action which will promote the sound and orderly development of the northeastern Illinois area. The purpose of this newsletter is to inform the region of what we have heard and to encourage continuing deliberation on what kind of region we want to be in the next century.What We Have Heard
Several general conclusions emerged from the workshops. The first is that there is widespread, though by no means unanimous, belief that the past trend of dispersed, low-density residential and employment growth has had unintended negative consequences which must be moderated to some degree in the interests of environmental quality, prudent public investment, and social equity. There is also substantial support for some public policy measures which could help achieve that moderated growth. These will be described in more detail below. Some measures which could be highly effective in moderating past trends are widely agreed to lack political acceptability in this region. Finally, there is broad support for measures which would improve the quality of local planning and development within either a continued trends or moderated trend approach.The Forecast: A Growing Region
The preparation of forecasts of future population, households, and employment is one of NIPC's most important responsibilities. These are not simply forecasts of the numbers of people, households and jobs which will be in the region in a future year. People, households, and jobs imply houses, roads, sewers, and parks. The forecasts thus represent the Commission's best estimate of how activities and facilities will be distributed across the region: where new housing will be necessary and old housing may become vacant, where new or expanded streets and sewers will be required, and where streams and wetlands will come under pressure form growing population. The forecasts thus have implicit in them a generalized land use plan for the region. It is critical that they be as realistic as possible in reflecting the trends and constraints of the market, the influences of public policy, and expectations of local governments.
We have previously described the process being used to develop forecasts for the year 2020 (NIPC Reports, January 5, 1996). In March 1994, the Commission endorsed regional forecast totals of 9 million people, 3.4 million households, and 5.3 million jobs in 2020. These figures represent a 25 percent increase in population and a 37 percent increase in employment from 1990 to 2020. By way of comparison, between 1970 and 1990 the region's population increased by only four percent and employment by 21 percent. The amount of land devoted to urban uses, however, increased by 34 percent during that twenty-year period. In view of this finding about land consumption, the forecasted future growth has the potential to add seriously to pressures on the transportation system, air and water quality, and agricultural land. The Commission thus concluded that alternatives to past patterns of growth had to be presented to the region for discussion.A Preferred Development Pattern in Northeastern Illinois
On June 26, 1996, the Commission conducted the first of two regional workshops on alternative growth scenarios and their implications. The intent was to assess how much support there might be for different development patterns and how much acceptance of their probable costs. It was hoped that participants would set aside issues of feasibility for the time being and respond to the question of what is the most desirable future for the region. The workshop was attended by 127 people representing a broad spectrum of organizations and interests.
Three general scenarios were presented. Each was designed to illustrate the outcome of a unique combination of public policies with respect to transportation and community development. The broad patterns of new household and job growth to which these scenarios would lead are shown in the maps below. Participants were not asked to express a preference among the scenarios themselves, but to evaluate the relative importantance of the impacts which each would have on communities and the natural environment. Questions to the participants concerned the importance of land development patterns which would (1) help preserve farmland, (2) encourage the use of public transit, (3) protect high-quality watersheds from the impacts of urbanization, and (4) promote affordable housing close to centers of job growth.
Continued Trends. This is the ``baseline'' scenario which assumes the least change, in terms of public policy, from recent conditions. Only limited highway and rail transit capacity would be built beyond what is currently committed for funding. Future demand for aviation service would be met at O'Hare and Midway. The broad pattern of low-density dispersal of jobs and households would continue. Households and jobs in Chicago and some inner suburbs would continue to decline while they would increase in the rest of the region. The largest number of new jobs would be located in suburban Cook County, and DuPage County would gain jobs but as a slower rate. The four outer counties would show the greatest percentage gains in employment. Household growth would be strongest in the middle ring of suburbs. The loss of farmland would be substantial, as would the negative impact of urban densities on lakes and streams. Automobile use would continue to increase and transit use to decline. The separation of affordable housing from low-income jobs would continue to increase.
South Suburban Airport. The central assumption of this scenario is that future need for additional aviation capacity would be provided at the proposed south suburban airport. Otherwise, the scenario makes essentially the same land use and transportation policy assumption as the trends alternative. Employment and population in Chicago would increase, although the city's regional share would decline slightly. Job growth would be lower than under existing trends in the northern and western parts of the region and substantially higher in south Cook and Will counties. Household growth would be similar to that expected under a continuation of trends. Conversion of agricultural land would be extensive, particularly in Will County, as would development pressure on lakes and streams. The development of the airport could have a positive effect on jobs-housing balance and on redevelopment by bringing employment to a portion of the region which is now relatively job-poor.
Redevelopment and Infill. This scenario represents a deliberate attempt to moderate the trend of dispersed development and to encourage reinvestment in mature communities. Like the trends scenario, this alternative assumes limited investment in new surface transportation and satisfaction of future aviation requirements at the existing regional airports. In addition, the scenario assumes (1) implementation of very strong farmland protection policies in the agricultural protection zones in Kane, McHenry and Will counties, (2) intensive population and employment growth within walking distance of selected transit stops in Chicago and the inner suburbs, and (3) high employment growth through redevelopment in certain built-up areas in Chicago, the inner suburbs, Waukegan, and Joliet. Under this scenario, Chicago's loss of population and employment would be reversed. At the same time, the other sectors of the region would all gain both people and jobs, though their rates of growth would be lower than under a continuation of trends. Conversion of farmland for development and urban stress on water resources would be at lower levels than the other two scenarios, but still significant. Similarly, automobile use would increase and transit ridership decrease, but at lower rates. Because both jobs and population would increase in the communities with the greatest low-income population, jobs-housing balance would change only slightly.
The redevelopment scenario was designed to simulate the effect of efforts to moderate the worst unintended consequences of recent trends. Two important conclusions emerge from an examination of the scenario results:
Given NIPC's overall forecasts, economic growth in northeastern Illinois need not be an either-or situation. Even with deliberate efforts to encourage reinvestment in the mature core communities, the balance of the region can sustain a relatively high level of growth.
Under conditions of high overall growth, managing negative environmental consequences will be very difficult even if the trend of decentralized, low-density development is moderated.
Following the presentation of the scenarios, a panel of five experts on aspects of the region's development commented on the alternatives and on issues related to their implementation. These are some of the highlights of their comments:
Barry Hokanson, Director of Planning, Lake County: Lake County is expected to experience high growth under any one of the scenarios. While the county has programs to meet the demands on resources and services generated by growth, the multiplicity of local governments makes the translation of regional projections into coordinated local planning difficult. There are strong voices in Lake County advocating constraint on new transportation capacity as a means of limiting growth and encouraging mature-area reinvestment.
David Schulz, Director, Infrastructure Technology Institute, Northwestern University: The outward movement of households is driven by a variety of forces having to do with the quality of schools, perceptions of safety, tax levels, and job availability. Transportation systems do not induce people to move but influence where they move. Constraining the transportation system will simply force people to move farther out past the perceived zone of congestion and will thus worsen the problem of dispersal rather than curing it.
Rusty Erickson, Director of Development, City of Aurora: Aurora has benefited from the decentralizing trend in the region. Continued growth is necessary to provide quality schools and other services to residents. It is important that new suburban growth be concentrated in areas with full public services. Low-density development in rural areas will destroy the open countryside which is a strong quality-of-life value.
Frank Martin, President, Shaw Homes Inc: There is a market for residential development which integrates the natural and built environments and which provides the resource efficiency and quality of life of a dense community, including access to public transportation, while preserving high-quality natural surroundings. However, developers will find this kind of balanced development hard to do successfully if local government does not address inefficiencies in public services and excessive regulations which work against affordability by raising land values and construction costs.
Benjamin Tuggle, Field Office Supervisor, U.S. Fish and Wildlife Service: Making maximum use of existing intrastructure and established urban areas is an important way of preserving high-quality air, surface water, and wetlands in . . .
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If You Build It, We Won't Come--the Collective Refusal of the Major
Airlines To Compete in the Chicago Air Travel Market
an analysis of the per se violations of federal antitrust laws by major airlines in their refusal to compete with each other in fortress hub markets--with metropolitan chicago as a case example--may 2000
The Suburban O'Hare Commission
The Suburban O'Hare Commission (SOC) is an inter-governmental agency representing more than one million residents who live in communities surrounding O'Hare Airport. SOC's leadership is made up of mayors and other officials who are both advocates for the quality of life and health of their communities and business persons who are concerned about the economic health of the region. Over the past several years SOC has conducted a number of studies relating to the environmental, safety, public health, and economic issues surrounding air transportation in the Chicago metropolitan region.
This current (SOC) report focuses on one of the significant economic issues relating to air transportation--monopoly power and high monopoly-supported air fares--and the legality of the Fortress Hub system under the nation's antitrust laws. However, as is discussed in the report, the major airlines' drive for preservation and expansion of their Fortress Hub system (especially at Fortress O'Hare)--and their corresponding refusal to compete in each other's Fortress Hub markets--creates serious economic, social, and environmental harm in broad areas of the metro Chicago region.
preface
In the past several years there have been numerous congressional hearings and media stories about a phenomenon in the airline industry known as ``Fortress Hubs'' and the problem of high monopoly supported airfares charged to airline passengers traveling from or through these Fortress Hubs.
However, most of the attention of Congress, the Administration, and the media has focused on two narrow facets of the Fortress Hub problem (1) restrictions on access by so-called ``low cost'' ``new entrant'' carriers to a few of the Fortress Hubs, and (2) the allegations of predatory pricing by a dominant major airline against a new low-cost entrant. But this narrow focus has ignored a much more fundamental question: Does the Big Seven Airlines Fortress Hub geographic allocation of markets--and their corresponding refusal to compete in each other's Fortress Hub markets--violate federal antitrust laws?
Virtually ignored by Congress and the Administration has been the concerted refusal of the major airlines--the so-called ``Big Seven'' (Northwest, United, American, Delta, US Air, Continental, and Trans World)--to compete with their fellow major airlines in each other's Fortress Hub cities. This study, prepared by the Suburban O'Hare Commission (SOC), focuses on the collective refusal of the Big Seven to compete with each other and examines the question as to whether this geographic allocation of Fortress Hub markets by the Big Seven violates federal antitrust laws. Does the Big Seven's refusal to compete in Metropolitan Chicago--their refusal to use the South Suburban Airport: ``If you build it, we won't come.''--violate federal anti-trust law?
The SOC study also focus on the Metropolitan Chicago market as a case study of the Big Seven's de facto arrangement not to compete with their fellow major airlines in each other's Fortress Hub cities. A glaring example of this concerted refusal by the major airlines to compete in the fellow major airlines' Fortress Hub markets can be found in the decision of the major airlines to boycott the proposed new South Suburban Airport in metropolitan Chicago. The major airlines'
``If you build it, we won't come'' argument is simply a manifestation of the majors' overall horizontal geographic restraint of major markets across the nation--and particularly in metropolitan Chicago.
the findings of this study
The study's findings include:
1. De Facto Geographic Allocation of Fortress Hub Markets by the Big Seven. The heart of the monopoly problem in Fortress Hub markets--and the resultant high monopoly-inducted air fares--has been the de facto agreement among the Big Seven to stay out of each other's Fortress Hub markets with any competitively significant level of entry into that market.
2. The Fortress Hub Monopoly Dominance Geographic Allocation by the Big Seven is Likely Costing the Nation's Air Travelers Billions of Dollars Annually. There is an overwhelming body of evidence that--because of the Fortress Hub monopoly dominance of one of two of the Big Seven at many metropolitan areas across the country--the Big Seven airlines are able to charge excessive air fares totaling billions of dollars a year. The principal victims of this monopoly-induced Fortress Hub excess fares are: (1) the time-sensitive business traveler who pays unrestricted coach fares and (2) the so-called ``spoke'' passenger who must connect through one of the ``Fortress Hubs'' monopoly tithe American consumer: billions of dollars per year in excess fares--hundreds of millions per year in metropolitan Chicago alone.
3. The Big Seven's De Facto Geographic Allocation of Major Air Travel Markets in the Nation through the Development of
``Fortress Hubs'' Constitutes a Per Se Violation of Federal Antitrust laws. Little discussion or analysis has been undertaken by Congress or the Administration as to whether this concerted refusal by the Big Seven to compete in their fellow major airlines' Fortress Hub markets--which costs consumers billions annually--constitutes a violation of federal antitrust laws. Based on clear and repeated Supreme Court precedent, it clearly does. The Big Seven's de facto geographic allocation of major air travel markets in the Fortress Hub through the development of ``Fortress Hubs'' constitutes a per se violation of the antitrust laws. The Supreme Court has uniformly condemned arrangements to carve up horizontal markets as per se violations of section 1 of the Sherman Act. See e.g., Palmer v. BRG Group of Georgia, 498 U.S. 46, 49 (1990); United States v Topco Associates, Inc., 405 U.S. 596, 607-609 (1972).
4. The Big Seven's Explicit Refusal to Compete In Metropolitan Chicago: If You Build It, we Won't Come. In the metropolitan Chicago air travel market, the illegal collective refusal of the Big Seven to compete is manifested by two actions: (1) the de facto abandonment by members of the Big Seven (other than United and American) of any significant role at O'Hare Airport and (2) the announcement by the Big Seven and its allied in the Air Transport Association that they would refuse to use a new South Suburban Regional Airport. In the popular jargon of the media, the Big Seven have said ``If you build it, we won't come.''
In reality, this collective refusal to use a new regional airport is nothing more than a manifestation of the Big Seven's horizontal market agreement not to compete in any significant way with United and American in their dominant Chicago market. This refusal by major airlines such as Delta, Northwest, USAir, and Continental to use new metropolitan Chicago airport capacity to compete in metropolitan Chicago is but an individual example of the per se antitrust violation of allocating geographic markets by the major airlines. ``If you build it, we won't come'' is a blatant violation of the federal antitrust laws.
5. The City of Chicago's Participation in Opposing New Capacity and in Assisting Big Seven in Their Refusal to Use the New South Suburban Airport is Not Immune from Antitrust Law Prosecution. The available evidence is clear that the City of Chicago and its agents have been active participants in helping the Big Seven Airlines in their refusal to compete in the Chicago market and their refusal to use the proposed South Suburban Airport. Absent express approval by the State of the monopolistic practice, political subdivisions of the State--like the City of Chicago--are not free to violate the antitrust laws under the guise of state action.
While Congress has made municipalities immune from damages for violations of the antitrust laws, Chicago and its officials are not immune from prosecution for their attempts to assist the Big Seven in their refusal to compete in the metro Chicago market and in United and American's attempts to monopolize that market.
6. It Appears That Federal Taxpayer Funds May Have Been Used to Suppress Competition and Violate the Antitrust Laws in the Chicago Market. United and American (the dominant carriers at O'Hare)--along with other major airlines through the Air Transport Association--have engaged in a concerted effort to defeat construction of a new South Suburban Airport, an airport that would provide significant capacity opportunities for major new competition to enter the Chicago market. United executives have stated their goal as ``Kill Peotone''.
United and American have been assisted in their ``Kill Peotone'' (and thus kill new competitive capacity) campaign by representatives of the City of Chicago--including Chicago's consultants have been paid several million dollars in fees to assist Chicago and United and American in expanding O'Hare and in obstructing development of a new South Suburban Airport.
Much of the money paid to these consultants has come from either: (1) federal Passenger Facility Charge (PFC) funds,
(2) federal Airport Improvement Program (AIP) funds, or (3) federally subsidized municipal airport bonds (``GARBs'' General Airport Revenue Bonds). Thus, we have the following spectacle--not only are the airlines and Chicago engaged in a monopolistic arrangement designed to prevent new competition from entering the Chicago market (i.e., through the new airport)--but much of the money to implement this illegal arrangement is coming from federal taxpayer dollars. The GAO and the Department of Justice should be asked to conduct an independent audit of all PFC, AIP, and GARB expenditures at O'Hare to determine if any federal funds were used as part of a campaign to ``Kill Petone''--i.e., a campaign to oppose construction of a new South Suburban Airport.
7. Federal Officials Have Participated in and Supported the Big Seven's Illegal Monopolistic Arrangement to Refuse to Compete in the Chicago Market. Not only have federal funds been used to support the major airlines illegal monopolistic arrangement to refuse to compete in the Chicago market, but it appears that federal officials within the Administration have worked with the major airlines and Chicago to assist in this antitrust arrangement to prevent the development of a new airport in metropolitan Chicago. For the last several years, federal administration officials--several of whom are former Chicago officials who worked for the City of Chicago--have blocked development of the new South Suburban Airport through a series of spurious legal claims that federal law requires that there be a ``consensus'' between the State of Illinois and the City of Chicago before a new metropolitan airport can be constructed. No such legal requirement exists.
Because of the active participation of key figures in the current administration in promoting and supporting the continued blockage of new airport development in metropolitan Chicago--in concert with the illegal refusal of the major airlines to compete in the Chicago market by using the new airport--the impartiality and lack of bias of the Administration in conducting law enforcement in this area is legitimately suspect. The Attorney General should be asked to appoint an independent prosecutor to conduct the antitrust investigation and to undertake all appropriate civil legal actions needed to correct the ongoing antitrust violations.
8. Defining the Market Under Monopoly Control and in Need of New Competition--The Hub-and-Spoke Market. The heart of the monopoly overcharges to travelers in the Chicago market is the absence of competition in the ``hub-and-spoke'' market in Chicago. None of the other Big Seven will come into the Chicago market to establish a competitive hub-and-spoke operation.
In an attempt to expand their monopoly and prevent new competition from entering the Chicago market, United and American--along with their surrogate allies--have sought to distract attention by suggesting a south suburban airport in metro Chicago as a ``point-to-point'' airport--not unlike Midway. United and American argue that O'Hare should be the only ``hub-and-spoke'' airport in metropolitan Chicago.
By shaping the argument in this fashion, United and American guarantee that they will be allowed to continue and dramatically expand their Fortress Hub monopoly at O'Hare. According to their arguments, the lion's share of all the origin-destination traffic in the region--and all of the connecting and international traffic--should go to the sole hub-and-spoke airport in the region: O'Hare. Any minor overflow of ``point-to-point'' origin-destination traffic that a dramatically expanded O'Hare and Midway could not handle (if any) could be addressed in a small ``point-to-point'' airport like the South Suburban Airport or Gary.
What United and American gloss over is the fact that there is plenty of competition in the Chicago market in point-to-point service. The real lack of competition in the Chicago market is in the lack of additional hub-and-spoke competition to challenge the hub-and-spoke duopoly of United and American at Fortress O`Hare. It is this market dominance of the hub-and-spoke market--not the point-to-point--where lack of competition gouges the business traveler and those travelers from ``spoke'' cities who must use a single Fortress Hub. There is a desperate need for new competitive hub-and-spoke service in the Chicago market and the place to put that hub-and-spoke is the new South Suburban Airport.
9. Beyond Antitrust Law Enforcement, Federal Transportation Officials Play a Major Antitrust Policy Role--In Either Promoting Monopoly Abuses or Encouraging Competition--By Their Decisions on the Use of Federal Taxpayer Funds. Not only have federal officials blocked development of new competition by blocking a new airport, federal approval of federal expenditures for major physical changes at O'Hare will exacerbate the monopoly power of American and United in this region.
Chicago's so-called ``World Gateway'' program has been designed in consultation with United and American to enhance and expand United and American's hub-and-spoke system at O'Hare. Chicago's World Gateway proposal is not designed to bring new hub-and-spoke competition into O'Hare or the Chicago market to compete with United and American.
Thus, Chicago's World Gateway proposal will enhance and expand United and American's Fortress Hub monopoly in the Chicago market. Since the physical design proposed by United and American and Chicago can only go forward if federal Transportation Department officials approve federal taxpayer funds to subsidize the project, federal officials are being asked to use billions of dollars in federal taxpayer funds to expand and enhance the illegal Fortress Hub monopoly of American and United at O'Hare. No federal officials appear to be examining whether spending 10 billion dollars (much of it from federal taxpayers) at O'Hare makes economic sense when much more new capacity to support competitive hub-and-spoke operations can be constructed at a new metropolitan airport for less than half the cost. Nor are federal officials examining whether the use of billions of dollars of federal taxpayer funds to expand United and American's hub-and-spoke duopoly at Fortress O'Hare--essentially using federal taxpayer funds to subsidize expansion of monopoly power--is a proper use of federal funds.
10. The Lifting of the Slot Limits at O'Hare Will Not Provide Sufficient Capacity to Allow Significant New Competition to Enter the Chicago Area Market. Much of the debate over the recent passage of the federal reauthorization of the Federal Aviation Program involved the issue of lifting
``slot restrictions'' at LaGuardia and Kennedy airports in New York and O'Hare in Chicago. One of the principal asserted justifications for lifting the slots was to provide access to so-called ``new entrant'' carriers that would presumably provide competition for the dominant carriers at O'Hare and force prices down. Yet FAA's own capacity studies at O'Hare demonstrate that O'Hare is already beyond acceptable limits of capacity and can provide only marginal capacity access--if any.
In addition, as predicted by Senator Peter Fitzgerald and Congressman Henry Hyde, any arguable incremental theoretical capacity at O'Hare will rapidly be consumed by United and American--expanding their monopoly. As stated by the Illinois Department of Transportation, the only effective way to provide sufficient capacity for major new competition in the Chicago market is to build major new capacity in the metropolitan Chicago area.
11. A New Runway at O'Hare is Intended to Increase Capacity to Expand United and American's Monopoly Power. The airlines' current public relations argument is that the lion's share of all the origin-destination traffic in the region (and all of the connecting and international traffic) should go to the sole hub-and-spoke airport in the region (O'Hare). Any minor overflow of point-to-point origin-destination traffic that a dramatically expanded O'Hare and Midway could not handle (if any) could be addressed in a small point-to-point airport like the South Suburban Airport or Gary.
Paralleling this argument is the claim by the airlines' allies that a new runway at O'Hare is needed to ``reduce delays.'' They claim that a new runway would not increase O'Hare capacity but simply reduce delays.
Yet an analysis using FAA's own capacity analysis standards and criteria demonstrates that a new runway at O'Hare would substantially increase the capacity of the airport. This capacity increase at O'Hare would dramatically expand American's and United's hub-and-spoke monopoly at Fortress O'Hare. Further, it would virtually doom the economic justification for the new south suburban airport because the new ``delay'' runway--once built--could easily be used to carry the new additional traffic for which the new airport was intended. Simply by piecemealing incremental expansion at O'Hare, Chicago and American and United can keep the region under the thumb of the Fortress O'Hare monopoly.
12. United's and American's Fight to Preserve and Expand Fortress Hub Monopoly Power at O'Hare Has Grave Social, Economic, Public Health, and Quality of Life Consequences for the Region. Much of the discussion in this paper focuses on the billions of dollars in monopoly induced overcharges inflicted on air travelers--particularly the business traveler--as a result of the Fortress Hub monopoly system. But these monopoly abuses also inflict other serious harm on a variety of important public and social interests.
The consequences of these abuses of monopoly power for the metro Chicago region are stark and severe:
O'Hare area communities will be subjected to more noise, more air pollution, and more safety hazards because--under the United, American, and Chicago proposal--all the international, all the transfer traffic, and the lion's share of the origin-destination traffic are jammed into an already overstuffed O'Hare. Any new airport--even if built--will simply receive the origin-destination overflow (if any) from a vastly expanded O'Hare and Midway.
South Chicago and south suburban communities will continue to suffer serious economic decline because the South Suburban Airport--which should have been built years ago--lies hostage to the unholy alliance struck between the monopoly interest of United and American and the political pique of Chicago's mayor.
recommendations
Based on the facts and the antitrust law analysis contained in this report, the Suburban O'Hare Commission recommends the following actions:
1. The United States Attorney General and the United States Attorney for the Northern District of Illinois should initiate an investigation into the collective refusal of the Big Seven airlines to compete against each other in each other's Fortress Hub Markets. Included in the investigation should be an examination of the role of third party collaborators in the antitrust violations--including the City of Chicago and other private organizations and individuals who have assisted the Big Seven (including United and American) in perpetrating these violations. Because of the involvement by federal officials in affirmatively assisting the Big Seven and the City of Chicago in keeping significant competition out of Chicago, the Attorney General should be asked to consider the appointment of independent counsel.
2. The United States Attorney General and the United States Attorney should bring a civil action in federal court to enjoin and break up the illegal Fortress Hub geographic market allocation by the Big Seven and prohibit the collective refusal by the Big Seven to compete in each other's Fortress Hub markets. Included in the relief should be a requirement that members of the Big Seven halt their collective refusal to use a new South Suburban Airport in metropolitan Chicago and a requirement that competitive hub-and-spoke operations be established in metro Chicago to compete with United and American.
3. The State Attorneys General should initiate civil damage actions to recover treble damages for the billions of dollars per year in excess monopoly profits in airfare overcharges that have been charged at the Big Seven's Fortress Hubs. The Illinois Attorney General should bring suit to recover treble damages for the hundreds of millions of dollars in monopoly overcharges by American and United at Fortress O'Hare. On a multiple year basis in Illinois alone, the treble damages recoverable for consumers would exceed several billion dollars.
4. The GAO and the Department of Justice should undertake an immediate and detailed audit of all federal funds that may have been used to further the refusal of the other members of the Big Seven to compete with United and American in metropolital Chicago--particularly the campaign by the airlines and Chicago to ``Kill Peotone.''
5. The United States Department of Transportation should withhold any further approvals of federal funds for expansion of the United and American duopoly at Fortress O'Hare.
6. The House and Senate Judiciary Committees should conduct immediate hearings on these issues.
7. Our Governor and our two United States Senators, the Speaker of the House, and our Illinois Attorney General should be respectfully asked what specific actions they will take to (1) break up the Fortress Hub system--particularly Fortress O'Hare; (2) bring new hub-and-spoke competitors into the Chicago market; (3) recover the billions in excess monopoly profits from the Fortress O'Hare overcharges; (4) prevent the Big Seven from continuing to refuse to use the new capacity provided to the South Suburban Airport; and (5) assemble the federal and state resources needed to rapidly build the South Suburban Airport.
8. Our Governor should hold fast to his promise not to permit any additional runways at O'Hare. To do otherwide would simply enhance and expand the monopoly power of Fortress O'Hare and doom the opportunity to bring new competition into the region at the South Suburban Airport.
9. The two candidates for President of the United States--both of whom have likely received large campaign contributions from the Big Seven--should be respectfully asked what they will do to break up the Fortress Hub system nationally and Fortress O'Hare in particular. Vice President Gore in particular should be asked why his administration has for the past eight years looked the other way while the Big Seven has used violations of the nation's antittust laws to literally steal billions of dollars from American consumers. Mr. Gore should also be asked to explain why his administration has literally blocked development of new competitive capacity in metro Chicago--i.e., a new South Suburban Airport--at every turn Finally, Mr. Bush should be asked specifically what he will do to build the South Suburban Airport and break up Fortress O'Hare.
introduction--relevant quotations
Alfred Kahn, the ``father'' of airlines deregulation:
Anyone who says applying antitrust laws is the same as re-regulation is simply ignorant. To preserve competition we need the antitrust laws and vigorous enforcement of the antitrust laws.
When we deregulated the airlines, we certainly did not intend to exempt them from the antitrust laws.
Gordon Bethune, Chairman and CEO, Continental Airlines:
``Continental chief says hub competition over,'':
Competition among airlines for dominance at major U.S. airports is virtually a thing of the past, the chairman of Continental Airlines said on Monday.
Continental chief executive Gordon Bethune, in a break from the usual industry line that competition reigns supreme, said the large air carriers have staked out their respective hubs and will be difficult to dislodge.
``In the last 20 years, the marketplace of the United States has been sorted out. American (Airlines) kind of controls Dallas-Fort Worth and Miami and we've got Newark, Houston and Cleveland. Delta's got Atlanta,'' Bethune said in remarks to the National Defense Transportation Association annual conference.
U.S. Senator Mike Dewine:
During the last year, there has been rising concern among some of the smaller airlines that the seven largest passenger carriers in the U.S. are no longer competing against each other. Essentially, the argument goes, the ``Big Seven'' have carved up the U.S. aviation market . . .
CEOs of 16 major airlines tell Illinois' Governor that they will not use new airport in metropolitan Chicago:
We are writing to express our concerns about further planning and development of the so-called Third Chicago Airport. It is our understanding that the State of Illinois will not proceed with the construction of a third airport without the support of the airlines. This letter is intended to inform you that the airlines oppose further planning and construction of this facility. . .
USA Today:
In the two decades since deregulation forced the government to stop telling carriers what fares to charge and which cities to serve, the big airlines have built up ``fortress hubs'' where, without meaningful competition, they alone decide where to go, how often to go there and how much to charge.
What travelers suspect is true: Airfares are climbing fast, and nowhere is the situation worse than at the hubs for the nation's largest airlines.
Business travelers have been especially hard hit at hubs.
And almost everywhere, hub fares, especially for business fliers, are soaring.
Even when low-fare carriers enter a hub market, they usually control so little of the traffic that they can't do much to bring fares down.
New York Times:
Business travelers feel particularly abused because they account for more than half of airline revenue. For in the through-the-looking-glass world of airline pricing, the fares paid by leisure travelers, who book as long as a month in advance and stay over a weekend night, have in many cases declined, while last-minute fully refundable fares, which are most often paid by business travelers, are skyrocketing.
``The carriers always say that the business traveler is inelastic,'' said Peter M. Buchheit, director of travel and meeting services for the Black & Decker Corporation, which spent $18 million on air tickets for its American employees last year. ``We need to travel so we will pay whatever it costs. But it has reached a point where we can't pay it anymore.''
The burden of high fares is even greater on small companies. John W. Galbraith, president of Twin Advertising, a small company based in Rochester that had $2 million in billings last year, said he was thinking about dropping clients outside the city because the high cost of visiting them cancels out the profit he makes from having their business.
``Basically, what the airlines have done to companies like ours is kept us from growing,'' he said. (New York Times January 11, 1998)
United States Supreme Court on horizontal market allocations as per se violations of federal antitrust law:
One of the classic examples of a per se violation of Sec. 1
[of the Sherman Antitrust Act] is an agreement between competitors at the same level of the market structure to allocate territories in order to minimize competition. . . . This Court has reiterated time and time again that
`[h]orizontal territorial limitations . . . are naked restraints of trade with no purpose except stifling of competition.' Such limitations are per se violations of the Sherman Act. (The United States Supreme Court in the 1990 decision in Palmer v. BRG Group of Georgia, 498 U.S. 46, 49
(1990).)
Relevant Provisions of The Sherman Act:
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court. (Title 15 United States Code Sec. 1)
Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court. (Title 15 United States Code Sec. 2)
The several district courts of the United States are invested with jurisdiction to prevent and restrain violations of sections 1 to 7 of this title; and it shall be the duty of the several United States attorneys, in their respective districts, under the direction of the Attorney General, to institute proceedings in equity to prevent and restrain such violations. (Title 15 United States Code Sec. 4)
[A]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee. (Title 15 United States Code Sec. 15)
1. Focusing on the Elephant in the Corner.
Over the last decade there have been extensive congressional hearings and much media coverage of so-called
``Fortress Hubs. But much of the attention has focused on two aspects of the Fortress Hub phenomenon:
Various ``constraints'' that the so-called ``low-cost''
``new-entrant'' airlines (e.g., Spirit Vanguard) say have prevented these new entrants from entering and competing in Fortress Hub markets; and
In those instances where the new low-cost airlines could physically enter the Fortress Hub market, the dominant hub airlines are alleged to have engaged in predatory pricing to drive the so-called ``low-cost'' ``new-entrant'' competitors out of the market.
But while Congress and the Administration have focused on these elements, they have ignored what might be called ``the elephant in the corner'' aspect of the Fortress Hub issue. Virtually ignored in these debates has been the role of the so-called ``major'' airlines--i.e., the so-called ``Big Seven'' controlling members of the trade group known as the Air Transport Association (ATA)--in creating and maintaining the Fortress Hub system. While Congress and the U.S. DOT talked about the anti-competitive aspects of keeping the new
``low-cost'' airlines out of the Fortress Hub market, little attention has been directed toward the issue of whether the Big Seven's Fortress Hub system is itself a violation of the nation's antitrust laws.
The purpose of this study is to: (1) analyze the known facts of the Fortress Hub system; (2) determine if the known facts demonstrate the existence of a violation of federal antitrust laws, (3) examine the role of the ``Big Seven's'' conduct in the Chicago air travel market as a case study illustration of their collaborative conduct nationally in maintaining the national Fortress Hub network, and (4) propose remedial action.
The findings of this study unequivocally demonstrate that the Fortress Hub system maintained by the Big Seven--alone and through their trade organizations, the Air Transport Association--is an illegal cartel in violation of the Nation's antitrust laws.
2. Geographic Market Allocation through Fortress Hubs--Mutual Protection of Fortress Hub Dominance Against New Competition from Other Big Seven Airlines.
There is overwhelming and incontroverible evidence that, since ``deregulation'' in 1978, the market airlines have carved up major areas of the Nation into territories of geographic market dominance known as ``Fortress Hubs''. Under this Fortress Hub arrangement, one or two major airlines are ceded geographic market dominance and other major airlines tactitly agree not to compete in that geographic market.
Thus Delta has Fortress Hubs at Atlanta and Cincinnati, USAir at Pittsburgh, Northwest at Minneapolis and Detroit, American at Dallas-Ft. Worth, American and United at Chicago O'Hare, etc. The other Big Seven airlines--either implicitly or by explicit agreement--have agreed to stay out of each other's Fortress Hub markets in any significant way. Thus, for example, Delta remains unchallenged by United, Northwest, and others in Atlanta. In turn, Delta doesn't provide significant challenge to United States and American at O'Hare or to Northwest at Minneapolis and Detroit. Similar de facto, quid pro quo non-compete accommodations by the major airlines can be found at virtually every Fortress Hub where one or two airlines have dominant control of the local market.
As stated by one congressional witness:
``The major airlines * * * developed high market share hubs in large sections of the country. Given the market power that they have developed, the major airlines have raised prices far above the competitive level in their market hubs (as study after study has shown). Furthermore, the major airlines defend their high price hub markets with predatory pricing. These markets are descriptively called `fortress hub's'.
``There are two things the major airlines are doing to monopolize large segments of the country. First, they work hard to see that entry to their large markets remains closed or difficult. Second, if a discounter enters a few of their markets they use predatory pricing to drive the discounters out of business.''
The broad reach of this Fortress Hub system is illustrated in a table prepared by the National Association of Attorneys General.
Cities Where Fortress Hubs Are Located
City and Dominant Airline
Atlanta, Delta; Chicago O'Hare, United and American; Cincinnati, Delta; Dallas, American; Detroit, Northwest; Houston International, Continental; Minneapolis/St. Paul, Northwest; Denver, United; Pittsburgh, US Air; St. Louis, TWA.
3. Monopoly Fare Premiums at Fortress Hubs.
There is a large body of evidence and expert opinion--as articulated by the General Accounting Office, USDOT, business travel organizations, and the Illinois Department of Transportation--that the dominance of these major markets by one or two carriers results in a monopolistic ability to raise fares beyond the air fares that would exist if there was strong competition in these Fortress Hub markets. As stated by the GAO as far back as 1990:
``Airports where one or two carriers handle most of the enplaning traffic have higher fares than airports where the traffic is less concentrated. Moreover, the data show that fares tend to rise as concentration increases. While many factors can influence fare changes, the evidence that we have collected strongly suggests that fares and concentration at an airport are related. Fares are higher at concentrated airports than at relatively less concentrated ones, and the evidence suggests that the gap is increasing.''
Subsequent studies by GAO since 1990 have confirmed the problem of higher fares at Fortress Hubs--higher than would exist in a competitive environment. See e.g., Barriers to Entry Continue in Some Markets (GAO/T-RCED-98-112; March 5, 1998); Airline Deregulation: Barriers to Entry Continue to Limit Competition in Several Key Domestic Markets (GAO/RCED-97-4, Oct. 18, 1996); Domestic Aviation: Barriers to Entry Continue to Limit Benefits of Airline Deregulation (GAO/RCED-97-120, May, 13, 1997); Airline Competition: Higher Fares and Less Competition Continue at Concentrated Airports (GAO/RCED-93-141, July 15, 1993); Airline Competition: Effects of Airline Market Concentration and Barriers to Entry on Airfares (GAO/RCED-91-101, Apr. 26, 1991).
While repeatedly emphasizing the problem of higher monopoly fares caused by lack of competition, GAO continued to emphasize the lifting of slot restrictions at three of the nation's airports as a partial solution to the problem. GAO's prime emphasis has been to obtain access to airport capacity for the so-called ``low-cost'' new entrant airlines into the Fortress Hub markets.
But GAO has never analyzed the issue of the ``capacity'' of these slot-restricted airports to service new competition--even if the slot restrictions were lifted. As discussed below, the FAA has repeatedly emphasized that the practical capacity of an airport is limited (see discussion, infra.) and that as traffic growth approaches the physical limits of the airport's capacity, aircraft delays rise geometrically--essentially leading to gridlock.
As the analysis contained in the 1995 DOT report A Study of the High Density Rule, and this study show, there simply is not enough capacity at O'Hare--even with the slots lifted--to all significant new competition to enter the Chicago market. This is why the Big Seven's collective refusal (discussed infra) to use and support the major new capacity that would be provided by the new South Suburban Airport is a central component in the preservation of the Fortress Hub problem in metropolitan Chicago. Moreover, any arguable minor increment of available capacity at O'Hare will rapidly be consumed by United and American. There simply is not enough room at O'Hare to allow a major new competitor to gain the ``critical mass'' to compete with United and American.
The Illinois Department of Transportation has repeatedly emphasized its opinion that monopoly dominance at O'Hare results in higher airfares paid by Chicago area travelers and that major new regional airport capacity is essential to breaking the monopoly stranglehold of Fortress O'Hare:
``There are numerous examples besides these to demonstrate that without the competition of a new entrant, the fares at Chicago are increasing or remain inordinately high.''
``We encourage and support your [USDOT's] focus on anticompetitive practices that are injuring commerce, smaller cities, and consumers in Illinois and throughout the region serviced by O'Hare Airport as the hub of United Airlines and American Airlines. We strongly urge, however, that the enforcement policies should be part of a broader initiative that will insure that there will be airport capacity available in the Chicago area that will provide new airline entrants the opportunity to compete with United and American. Additional airport capacity is vital to restoring airline competition in the Chicago, Illinois, and Midwestern markets.''
``There is simply no room at O'Hare for new entrant airlines to pose competitive challenges to the dominant airlines.''
4. Time Sensitive Business Traveler Biggest Loser in Fortress Hub Monopoly System.
The air travel consumer most seriously harmed by this horizontal Fortress Hub market allocation is the business traveler--particularly the small to medium size business traveler who cannot negotiate bulk fare discounts and who must make time sensitive business trips at unrestricted coach fares.
The Illinois Department of Transportation estimates this monopoly based fare penalty at O'Hare alone exceeds several hundred million dollars per year. Nationally, the loss to the traveling public from these monopoly premiums at Fortress Hubs is likely to exceed several billion dollars annually.
As stated in major articles on the subject by USA Today and the New York Times:
What travelers suspect is true: Airfares are climbing fast, and nowhere is the situation worse than at the hubs for the nation's largest airlines.
Business travelers have been especially hard hit at hubs
And almost everywhere, hub fares, especially for business fliers, are soaring. (USA Today February 23, 1998)
Business travelers feel particularly abused because they account for more than half of airline revenue. For in the through-the-looking-glass world of airline pricing, the fares paid by leisure travelers, who book as long as a month in advance and stay over a weekend night, have in many cases declined, while last-minute fully refundable fares, which are most often paid by business travelers, are skyrocketing.
``The carriers always say that the business traveler is inelastic,'' said Peter M. Buchheit, director of travel and meeting services for the Black & Decker Corporation, which spent $18 million on air tickets for its American employees last year. ``We need to travel so we will pay whatever it costs. But it has reached a point where we can't pay it anymore.''
The burden of high fares is even greater on small companies. John W. Galbraith, president of Twin Advertising, a small company based in Rochester that had $2 million in billings last year, said he was thinking about dropping clients outside the city because the high cost of visiting them cancels out the profit he makes from having their business.
``Basically, what the airlines have done to companies like ours is kept us from growing,'' he said. (New York Times January 11, 1998)
Put bluntly, the Big Seven has used their monopoly power at Fortress Hubs to literally extort billions of dollars annually from captive travelers--most often time sensitive business travelers living in these airlines' own Fortress Hub communities.
5. The Second Biggest Loser in the Fortress Hub Monopoly System is the ``Spoke'' Passenger.
The second biggest loser from this Fortress Hub monopoly system is the so-called ``spoke'' passenger in the small to medium size community that serves as the ``spoke'' to a single large metropolitan Fortress Hub. Because the dominant Big Seven airline at a Fortress Hub has no competition at its hub, it is free to charge the spoke passenger--who must use the hub to get to his or her destination--excessive monopoly fares.
The Illinois Department of Transportation--again emphasizing the lack of capacity to handle both new competition and service to smaller and mid-size communities--has stated the problem as follows:
``The dominant airlines are diminishing and even abandoning service to smaller Illinois and Midwestern cities in favor of routes that are more lucrative or that increase the power of their hub networks.''
Because the dominant O'Hare airlines prioritize the limited capacity at O'Hare to service the flight operations with the highest profitability, the small community ``spoke'' traveler gets harmed on two levels. First, he loses service when the cominant airlines cut small community service to use the limited capacity to service more lucrative long-haul or international traffic--eliminating less profitable small community service. Second, as to the small community traffic that the dominant airlines still service, they are able to charge exorbitant rates--knowing that the small community spoke traveler is at their mercy.
6. The Big Seven's Fortress Hub Geographic Market Allocation is a Per Se Violation of the Antitrust laws.
Neither the Administration nor the Congress appears to have critically examined a central question: Does the Big Seven's Fortress Hub geographic market allocation violate the Nation's antitrust laws? Based on clear and repeated Supreme Court precedent, it clearly does.
The major airlines general de facto geographic allocation of major air travel markets in the nation through the development of ``Fortress Hubs'' constitutes a per se violation of the antitrust laws. The Supreme Court has uniformly condemned arrangements to carve up horizontal markets as per se violations of Section 1 of the Sherman Act. See e.g., Palmer v. BRG Group of Georgia, 498 U.S. 46, 49
(1990); United States v. Topco Associates, Inc., 405 U.S. 596, 607-609 (1972).
Virtually all laymen and most lawyers shy away from antitrust law as an economic morass difficult to understand. But there is one area where the United States Supreme Court has been clear and unequivocal: horizontal arrangements to carve up geographic markets are an automatic--a ``per se''--violation of the federal antitrust laws. Because this law is so-clear and unambiguous--and recognizing that the airlines will claim that the law can be ignored--we believe it important to quote the United States Supreme Court on this subject:
``While the Court has utilized the `rule of reason' in evaluating the legality of most restraints alleged to be violative of the Sherman Act, it has also developed the doctrine that certain business relationships are per se violations of the Act without regard to a consideration of their reasonableness. In Northern Pacific R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545
(1958), Mr. Justice Black explained the appropriateness of, and the need for, per se rules:''
`` `(T)here are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. This principle of per se unreasonableness not only makes the type of restraints which are prescribed by the Sherman Act more certain to the benefit of everyone concerned, but it also avoids the necessity for an incredibly complicated and prolonged economic investigation into the entire history of the industry involved, as well as related industries, in an effort to determine at large whether a particular restraint has been unreasonable--an inquiry so often wholly fruitless when undertaken.' ''
``It is only after considerable experience with certain business relationships that courts classify them as per se violations of the Sherman Act. See generally Van Cise, The Future of Per Se in Antitrust Law, 50 Va.L.Rev. 1165 (1964). One of the classic examples of a per se violation of Sec. 1 is an agreement between competitors at the same level of the market structure to allocate territories in order to minimize competition. Such concerted action is usually termed a
`horizontal' restraint, in contradistinction to combinations of persons at different levels of the market structure, e.g., manufacturers and distributors, which are termed `vertical' restraints. The Court has reiterated time and time again that
`(h)orizontal territorial limitations . . . are naked restraints of trade with no purpose except stifling of competition.' White Motor Co. v. United States, 372 U.S. 253, 263, 83 S. Ct. 696, 702, 9 L.Ed.2d 738 (1963). Such limitations are per se violations of the Sherman Act. See Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 20 S.Ct. 44 L.Ed 136 (1989), aff'g 85 F. 271 (C.A.6 1898) (Taft, J.); United States v. National Lead Co., 332 U.S. 319,67 S.Ct. 1634, 91 L.Ed. 2077 (1947); Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951); Northern Pacific R. Co. v. United States, supra; Citizen Publishing Co. v. United States, 394 U.S. 131, 89 S.Ct. 927, 22 L.Ed.2d 148 (1969); United States v. Sealy, Inc., 388 U.S. 350, 87 S.Ct. 1847, 28 L.Ed.2d 1238
(1967); United States v. Arnold, Schwinn & Co., 388 U.S. 365, 390, 87 S.Ct. 1856, 1871, 18 L.Ed.2d 1249 (1967)
(Stewart, J., concurring in part and dissenting in part); Serta Associates, Inc. v. United States, 393 U.S. 534, 89 S.Ct. 870, 21 L.Ed.2d 753 (1969), aff'g 296 F.Supp. 1121, 1128 (N.D.Del.1968).'' (United States v. Topco Associates, Inc., 405 U.S. at 607-608 (emphasis added))
The Big Seven's carving up of geographic markets into the current Fortress Hub system is nothing more than a naked horizontal restraint repeatedly condemned by the Supreme Court as a per se violation of the Sherman Act.
Put in terms the average citizen understands--Could McDonald's tell Burger King: We won't compete in Atlanta if you won't compete in Chicago? Could Ford tell GM: We won't sell Fords in Michigan if you won't well Chevys in Illinois? The answer is clearly no. Each would be a horizontal market restraint and a per se violation of the Sherman Act just as the Big Seven's Fortress Hub system--and their refusal to compete in each other's hub market--is a horizontal market restraint and a per se violation of the Sherman Act.
The law is equally clear it is not necessary to demonstrate a formal written agreement among the Big Seven to carve up the geographic Fortress Hub market in order to find a conspiracy in violation of the Sherman Act. The existence of such an agreement or arrangement can be inferred from the course of conduct of the members of the industry. Norfolk Monument Company v. Woodlawn Memorial Gardens, 394 U.S. 700, 704 (1969); American Tobacco Company v. United States, 328 U.S. 781, 809-810 (1946); InterstateCircuit v. United States, 306 U.S. 208, 221, 226-227 (1939).
7. The Metropolitan Chicago Market: An Egregious Example of the Geographic Market Allocation and Refusal to Compete--``If You Build It, We Won't Come.''
A particularly egregious implementation of this horizontal agreement not to compete in each other's Fortress Hub markets can be found in the major airlines' announced refusal to use a new major airport in the metropolitan Chicago. The most visible manifestation of their refusal to compete in the Chicago market an be found in letters written by sixteen Chief Executive Officers (CEOs) of the major airlines to Illinois Governor Jim Edgar and his successor George Ryan. In those letters--drafted in coordination with representatives of the City of Chicago and the Air Transport Association--the major airlines tell the Illinois Governor that they will refuse to use the proposed new metropolitan Chicago airport:
``We are writing to express our concerns about further planning and development of the so-called Third Chicago Airport. It is our understanding that the State of Illinois will not proceed with the construction of a third airport without the support of the airlines. This letter is intended to inform you that the airlines oppose further planning and construction of this facility . . .
Chicago area news media have characterized the major airlines' refusal to use a new airport as ``If you build it, we won't come.'' In reality, this collective refusal to use a new regional airport is nothing more than a manifestation of the major airlines' horizontal market agreement not to compete in any significant way with United and American in their dominant Chicago market. This refusal by major airlines such as Delta, Northwest, USAir, and Continental to use new metropolitan Chicago airport capacity to compete in metropolitan Chicago is but an individual example of the per se antitrust violation of allocating geographic markets by the major airlines.
8. The Fortress Hub System and the Big Seven's Collective Refusal to Compete in Each Other's Fortress Hub Markets--as Illustrated by Their Collective Refusal to Use the New South Suburban Airport--Represent Serious Violations of Federal Law.
These clear violations by the Big Seven airlines in creating and maintaining the Fortress Hub system and the refusal of the Big Seven to compete in each other's markets represent serious violations of the antitrust laws. If the GAO and IDOT estimates are accurate, nationally the Fortress Hub system literally illegally steals several billion dollars per year from the nation's air travelers--several hundred million dollars in the Chicago area alone.
Because these antitrust violations are so blatant, it is important for the public to know the significant sanctions and remedies available to cure these violations.
Section 1 of the Sherman Act provides:
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court. (Title 15 United States Code Sec. 1 (emphasis added))
Section 2 of the Sherman Act provides:
Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court. (Title 15 United States Code Sec. 2 (emphasis added))
Section 4 of the Act provides civil injunction remedies and mandates the Department of Justice to ``institute proceedings in equity to prevent and restrain such violations'':
The several district courts of the United States are invested with jurisdiction to prevent and restrain violations of sections 1 to 7 of this title; and it shall be the duty of the several United States attorneys, in their respective districts, under the direction of the Attorney General, to institute proceedings in equity to prevent and restrain such violations. (Title 15 United States Sec. 4 (emphasis added))
Section 15 provides that any person injured by the violations of the antitrust laws can recover treble (triple) damages for the monetary losses caused by the violations.
[A]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefore in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee. (Title 15 United States Code Sec. 15)
In summary, the statutory sanctions for these antitrust violations are significant. Thus far, federal Department of Justice officials have been unwilling to initiate antitrust enforcement proceedings to break up the Fortress Hub monopoly of the Big Seven.
9. The Major Airlines Geographic Market Allocation--A Per Se Violation of the Antitrust laws--Is Not Immunized by the
``Noerr-Pennington'' Doctrine.
The major airlines' have engaged in this de facto Fortress Hub geographic market allocation scheme for more than a decade. It is likely that the airlines will assert that their collective refusal to compete in the metropolitan Chicago market--and the manifestation of that refusal by their letters to Governors Edgar and Ryan--is immunized from antitrust law enforcement by the ``Noerr-Pennington'' doctrine. That doctrine immunizes antitrust violations where the principal vehicle for achieving the monopolistic goal is political expression--i.e., lobbying government.
But the post-Noerr-Pennington case law makes clear that where a business arrangement--that otherwise violates the antitrust laws--has one component that involves the exercise of First Amendment speech, there is no immunity from antitrust enforcement under the ``Noerr-Pennington'' doctrine. See Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 505-506 (1988); FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 423-426 (1990); Sandy River Nursing Care v. Aetna Casualty, 985 F.2d 1138, 1142-43
(1st Cir. 1993); In re Brand Name Prescription Drugs Antitrust Litigation, 186 F.3d 781, 788-789 (7th Cir. 1999).
10. The Major Airlines Geographic Market Allocation--A Per Se Violation of the Antitrust laws--Is Not Immunized by the
``State Action Doctrine''.
It is common for those accused of antitrust violations to claim that their monopolistic practices are immunized from antitrust liability under the so-called ``state action'' doctrine of Parker v. Brown, 317 U.S. 341 (1943). The Supreme Court's rationale in Parker for ``state action'' immunity was the Congress had not intended in the Sherman Act to control the activities of states in engaging in conduct directed by the state legislature. 317 U.S. at 351-352.
But the Supreme Court has severely limited the availability of ``state action'' immunity when invoked by private parties such as the airlines in an attempt to immunize conduct clearly violative of the antitrust laws. The Supreme Court has established two requirements for ``state action'' immunity where private parties participate in the antitrust violation: 1) the monopolistic activity must be clearly expressed and affirmatively adopted as being the policy of the State, and 2) the monopolistic activity must be actively supervised by the State itself. Federal Trade Commission v. Ticor Title Insurance Co, 504 U.S. 621, 633-634 (1992); Patrick v. Burget, 486 U.S. 94, 101-102 (1988); California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97, 105-106 (1980).
In the case of Fortress O'Hare and the collective campaign of United, American and Chicago to keep significant new hub-and-spoke competition from coming into the metro Chicago market, there is no question that the ``state action'' defense does not apply. First, the State of Illinois has not authorized the Fortress O'Hare monopoly maintained by United and American and has actively spoken out against the monopoly problem there. Second, the State is not actively supervising and approving the anti-competitive conduct by United and United and American and Chicago.
11. Federal Taxpayer Funds May Have Been Used to Suppress Competition and Violate the Antitrust Laws in the Chicago Market.
As stated above, other major airlines through the (ATA), United and American (the dominant carriers at O'Hare) have engaged in a concerted effort to defeat construction of a new South Suburban Airport, an airport that would provide significant capacity opportunities for major new competition to enter the Chicago market. United executives have privately stated their goal as ``Kill Peotone''.
United and American have been assisted in their ``Kill Peotone'' (and thus kill new competitive capacity) campaign by representatives of the City of Chicago--including Chicago's consultants. Chicago's consultants have been paid several million dollars in consulting fees to assist Chicago and United and American in expanding O'Hare and in obstructing development of a new South Suburban Airport.
Much of the money paid to these consultants has come from either: (1) federal Passenger Facility Charge (PFC) funds (2) federal Airport Improvement Program (AIP) funds, or (3) federal tax subsidies for municipal for municipal airport bonds (``GARBs'' General Airport Revenue Bonds). Not only are the airlines and Chicago engaged in a monopolistic arrangement designed to prevent new competition from entering the Chicago market (i.e., through the new airport), but much of the money to implement this illegal arrangement is coming from federal taxpayer dollars. The GAO and the Department of Justice should be asked to conduct an independent audit of all PFC, AIP, and GARB expenditures at O'Hare to determine if any federal funds wee used as part of a campaign to ``Kill Peotone'' and to assist in the violation of federal antitrust laws.
12. Federal Officials Have Participated in and Supported the Big Seven's Illegal Monopolistic Arrangement to Refuse to Compete in the Chicago Market.
Not only have federal funds been used to support the major airlines illegal monopolistic arrangement to refuse to compete in the Chicago market, but it appears that federal officials within the Administration have worked with the major airlines and Chicago to assist in this antitrust arrangement to prevent the development of a new airport in metropolitan Chicago. For the last several years, federal administration officials--several of whom are former Chicago officials who worked for the Chicago Aviation Department--have blocked development of the new South Suburban Airport through a series of spurious legal claims that federal law requires that a ``consensus'' must exist between the State of Illinois and the City of Chicago before a new metropolitan airport can be constructed. No such legal requirement exists.
Because of the active participation of key figures in the current administration in promoting and supporting the continued blockage of new airport development in metropolitan Chicago--in concert with the illegal refusal of the major airlines to compete in the Chicago market by using the new airport--and impartiality and lack of bias of the Administration in conducting law enforcement in this area is suspect. The Attorney General should be asked to appoint an independent prosecutor to conduct the antitrust investigation and to undertake all appropriate actions needed to correct the ongoing antitrust violations.
13. Defining Essential Remedies--A New Regional Airport With Sufficient Capacity to Support New Competitive Hub-And-Spoke Operations.
There have been two ``remedies'' asserted to eliminate the monopoly dominance of Fortress O'Hare in the Chicago market. The first--eliminating slot restrictions at O'Hare--was proposed and passed by Congress this year. According to proponents of lifting the slot limits, elimination of slot controls would bring new competition into O'hare.
A. Lifting the Slot Limits Was an Unmitigated Disaster.
At the time the federal laws lifting the slot limits was passed, Illinois Senator Peter Fitzgerald and Congressman Henry Hyde both voted against the bill. They argued that the slot limitations were not an artificial constraint but a recognition of the already exhausted limited capacity of O'Hare. They argued that lifting the slots would be a disaster because: (1) added flights should lead to a massive delay gridlock at O'Hare, and (2) that even if there were any additional capacity, that capacity would be rapidly consumed by American and United. Under these circumstances, they argued that lifting the slot limits would simply expand United's and American's monopoly--not increase competition.
Senator Fitzgerald and Congressman Hyde can rightfully say: I told you so. On April 20, 2000 United and American announced their intent to add 400 new daily flights to O'Hare. The sad reality is that O'Hare does not have the capacity for these 400 new flights. But Fitzgerald's and Hyde's point was made; whatever arguable minor incremental capacity exists at O'Hare (if any), it has been rapidly consumed by United and American--not used by new competition. Instead of reducing the monopoly, the new federal law has helped United and America expand the monopoly.
United's and American's actions--coupled with the limited capacity of O'Hare--illustrate's salient point. There simply is not enough capacity at O'Hare to bring any significant new competition into O'Hare. Any new competitive entry will be token at best and not provide meaningful competition to the hub-and-spoke dominance of United and American.
Lifting the slot limit, coupled with United and American's actions to jam more than 400 new flights into O'Hare also means massive new delay increases for the traveling public this Summer. To illustrate these points and to demonstrate why the recently passed federal legislation makes matters much worse at O'Hare requires a brief analysis of the related issues of capacity and delay at airport--particularly O'Hare.
FAA, the airlines, Chicago and IDOT define capacity as the number of operations that can be processed at an airport at an acceptable level of delay. There is a recognition that there is a difference between absolute maximum physical throughput and a lower level of operations that can be put through without experiencing intolerable levels of delay and cancellations. As stated by the City of Chicago:
``The practical capacity of an airfield will be defined as the maximum level of average all-weather throughput achievable while maintaining an acceptable level of delay.''
``Ten minutes per aircraft operation will be used at the maximum level of acceptable delay for the assessment of the existing airfield's capacity, subject to future levels of forecast demand. This level of delay represents an upper bound for acceptable delays at major hub airports.''
This relationship between maximum physical throughput and practical, delay-sensitive capacity is illustrated in a FAA chart copied from an FAA report on the subject, Airfield and Airspace Capacity/Delay Policy Analysis, FAA-APO-81-14.
This relationship holds true whatever the input data as to the level of demand or whatever the capacity of the airport under study. Once the demand reaches a point approaching the physical capacity of the airport the delay levels for all traffic at the airport rise geometrically. The acceptable or
``practical capacity'' of the airport is that level where delays are acceptable. To push more traffic beyond that point is a certain invitation to massive delays, major cancellations, and gridlock.
At one point FAA defined the acceptable level for practical capacity of an airport as four minutes average annual delay. That translated into about a 30-minute delay in peak periods. Now FAA, IDOT and Chicago defined the acceptable level of delay to define practical capacity as 10 minutes average annual delay. This translates (in equivalent terms) into more than an hour delay in peak periods.
What is important to emphasize is that all FAA and chicago--and most likely Booz-Allen and United and Ameican--runs of the SIMMOD model for O'Hare show average annual delay at O'Hare is currently in excess of 10 minutes average annual delay--already above acceptable capacity limits without adding more flights. FAA and Chicago and United and American all know that a push 400-500 new flights per day into O'Hare is going to lead to: (1) massive increases in delays and (2) widespread cancellations. FAA (USDOT) A Study of the High Density Rule illustrates the massive delay increase that adding just a few flights at O'Hare beyond the slot limits will do to all passengers at O'Hare. This analysis shows that adding 400-500 flights per day will lead to disastrous delays for all passengers--more than doubling the delays for all passengers, not just those who are on the new additional flights.
We anticipate that FAA and United and American will claim that the delay and capacity results of DOT in 1995 have been changed because of capacity improvements at O'Hare in intervening years. But if so, a few questions need answering. What are the capacity improvements since 1995? How much new capacity has been provided? What will be the capacity/delay numbers (comparable to DOT's 1995 analysis) with the new capacity? Why were there no public hearings and environmental disclosure on these capacity improvements?
We suspect the answer is that there have not been any capacity changes at O'Hare since 1995 and DOT's numbers remain valid. Conversely, if there have been capacity changes, FAA has failed to inform both affected elected officials (e.g., Congressman Hyde and Senator Fitzgerald) and they have failed to tell the public and give the public an opportunity to be heard.
There is another important point to emphasize about this throughput/delay relationship shown on the FAA charts. Where the airport is at the limits of acceptable delays--i.e., the practical capacity limit--very small shifts in either traffic demand or capacity can dramatically increase delays for all passengers. Thus a small increase in traffic demand beyond the practical capacity limit will generate huge increases in delays for all passengers. Similarly, a slight decrease in capacity--such as experienced this past year when regional jet pilots were refusing Land-And-Hold-Short for safety reasons--can dramatically increase delays with little or no increase in throughput. The point here is that O'Hare is already at the breaking point--brought there by the resistance of Chicago and the Fortress Hub airlines at O'Hare
(United and American) to the building of a new regional airport. O'Hare cannot handle 400-500 new flights per day and United and American know it. Their own SIMMOD analysis tells them that.
Why then do United and American announce a literally foolhardy plan to jam 400-500 flights into O'Hare--an announcement made the same day that United's and American's front organization (the Civic Committee) calls for a new runway at O'Hare? By deliberately creating chaos at O'Hare, United and American will then be able to say that delays are at crisis levels and we must immediately build a new runway at O'Hare.
B. The ``Point-To-Point'' Shell Game: Building the South Suburban Airport as a ``Point-To-Point'' Airport Will Not Break the Hub-And-Spoke Monopoly of Fortress O'Hare.
The heart of the monopoly overcharges to travelers in the Chicago market is the absence of competition in the hub-and-spoke market in Chicago. None of the other Big Seven will come into the Chicago market to establish a competitive hub-and-spoke operation.
United and American propose using close to 10 billion dollars (much of it in federal funds) to expand United and American's hub-and-spoke empire at Fortress O'Hare. In an attempt to expand their monopoly and prevent new competition from entering the Chicago market, United and American (along with the ``Civic Committee'' and the Chicagoland Chamber) have sought to distract attention by suggesting a south suburban airport in Chicago as a ``point-to-point'' airport--not unlike Midway. United and American argues that O'Hare should be the only ``hub-and-spoke'' airport in metropolitan Chicago.
By shaping the argument in this fashion, United and American guarantee that they will be allowed to continue and dramatically expand their Fortress Hub monopoly at O'Hare. According to their arguments, the lion's share of all the origin-destination traffic in the region--and all of the connecting and international traffic--should go to the sole hub-and-spoke airport in the region: O'Hare. Any minor overflow of ``point-to-point'' origin-destination traffic that Midway could not handle could be addressed in a small
``point-to-point'' airport like the South Suburban Airport or Gary.
What United and American gloss over is the fact there is plenty of competition in the Chicago market in point-to-point service. The real lack of competition in the Chicago market is in the lack of additional hub-and-spoke competition to challenge the hub-and-spoke duopoly of United and American at Fortress O'Hare. It is this market dominance of the hub-and-spoke market--not the point-to-point--where lack of competition gouges the business traveler and the traveler from ``spoke'' cities. There is a desperate need for new competitive hub-and-spoke service in the Chicago market and the place to put that hub-and-spoke is the new South Suburban Airport.
No federal administration officials appear to be examining whether spending 10 billion dollars (much of it from federal taxpayers) at O'Hare makes economic sense when much more new capacity to support competitive hub-and-spoke operations can be constructed at a new metropolitan airport for less than half the cost. Nor are federal officials examining whether the use of billions of dollars of federal taxpayer funds to expand United and American's hub-and-spoke duopoly at Fortress O'Hare--essentially using billions of dollars of federal taxpayer funds to subsidize expansion of monopoly power--is proper use of federal funds.
C. A New Runway at O'Hare is Intended to Increase Capacity to Expand United and American's Monopoly Power.
As discussed above, the airlines' current public relations argument is that the lion's share of all the origin-destination traffic in the region (and all of the connecting and international traffic) should go to the sole hub-and-spoke airport in the region (O'Hare). Any minor overflow of point-to-point origin-destination traffic that a dramatically expanded O'Hare and Midway could not handle (if any) could be addressed in a small point-to-point airport like the South Suburban Airport or Gary.
Paralleling this argument is the claim by the airlines allies that a new runway at O'Hare is needed to ``reduce delays''. They claim that a new runway would not increase O'Hare capacity but simply reduce delays.
Yet an analysis using FAA's own capacity analysis standards and criteria demonstrates that a new runway at O'Hare would substantially increase the capacity of the airport. As discussed above, the concepts of capacity and delay are closely interrelated. The FAA and Chicago both define capacity as that level of aircraft operations that can be processed at an airport at an acceptable level of delay.
The FAA's published graphic showing the relationship of capacity and delay illustrates a how a so-called ``delay reduction'' at one level of traffic results in an increase in capacity at the airport to accommodate additional levels of traffic.
This capacity increase at O'Hare--by building a runway to
``reduce delay''--would dramatically expand American's and United's hub-and-spoke monopoly at Fortress O'Hare. Further, it would virtually doom the economic justification for the new south suburban airport because the new ``delay'' runway--once built--could easily be used to carry the new additional traffic for which the new airport was intended. Simply by piecemealing incremental expansion at O'Hare, Chicago and American and United can keep the region under the thumb of the Fortress O'Hare monopoly.
14. United's and American's Fight to Preserve and Expand Fortress Hub Monopoly Power at O'Hare has Grave Social, Economic, Public Health, and Quality of Life Consequences for the Region.
In their passion to expand Fortress O'Hare and defeat the prospect of new hub-and-spoke competition coming into a new airport, United and American have disregarded safety, public health, and quality of life for the communities around O'Hare. All parties are in agreement that growth in air traffic should be accommodated with major increases in new airport capacity in the metropolitan Chicago region.
The choices are stark: (1) a new regional airport which will have an environmental land buffer three times the size of O'Hare and plenty of capacity to accommodate new hub-and-spoke competition or (2) an overstuffed O'Hare with no land buffer and continued dominance of the metropolitan hub-and-spoke market by United and American. But for the addiction to monopoly revenues at Fortress O'Hare, the decision is simple--send the traffic growth to a new environmentally sound, competitively open new regional airport.
Instead we have United and American and their political surrogates urging more air pollution, more noise, and more safety hazards be imposed on O'Hare area communities--simply to protect and expand the Fortress O'Hare monopoly. We now live in a bizarre world where the desire to protect and expand violations of antitrust law and illegal overcharges trumps protection of public health, safety and quality of life.
The consequences of these abuses of monopoly power for the metro Chicago region are stark and severe:
O'Hare area communities will be subjected to more noise, more air pollution, and more safety hazards because--under the United, American, and Chicago proposal--all the international, all the transfer traffic, and the lion's share of the origin-destination traffic are jammed into an already overstuffed O'Hare. Any new airport--even if built--will simply receive the origin-destination overflow (if any) from a vastly expanded O'Hare and Midway.
South Chicago and south suburban communities will continue to suffer serious economic decline because the South Suburban Airport--which should have been built years ago--lies hostage to the unholy alliance struck between the monopoly interest of United and American and the political pique of Chicago's mayor. Residents of South and South Suburban Chicago legitimately ask why United and American oppose the hundreds of thousands of jobs and billions in economic benefits that would accrue to this area if the new airport is built. Some attribute United and American's position to racial intent. More accurately, United and American are willing to ignore the severe economic harm their monopolistic position inflicts on an area with a significant African-American population if that harm is a necessary consequence of preserving and expanding their monopoly at Fortress O'Hare. In a world of pure economic rationality, monopoly power and the social and economic injustices incident to that monopoly power might be excused as central to the maximization of profit. However, in a world of law and justice--where political leaders must account for their failure to correct these abuses--such destructive monopoly power should not be tolerated.
recommendations
Based on the facts and the antitrust law analysis contained in this report, the Suburban O'Hare Commission recommends the following actions:
The United States Attorney General and the United States Attorney for the Northern District of Illinois should initiate an investigation into the collective refusal of the Big Seven airlines to compete against each other in each other's Fortress Hub Markets. Included in the investigation should be an examination of the role of third party collaborators in the antitrust violations--including the City of Chicago and other private organizations and individuals who have assisted the Big Seven (including United and American) in perpetrating these violations. Because of the involvement by federal officials in affirmatively assisting the Big Seven and the City of Chicago in keeping significant competition out of Chicago, the Attorney General should be asked to consider the appointment of independent counsel.
The United States Attorney General and the United States Attorney should bring a civil action in federal court to enjoin and break up the illegal Fortress Hub geographic market allocation by the Big Seven and prohibit the collective refusal by the Big Seven to compete in each other's Fortress Hub markets. Included in the relief should be a requirement that members of the Big Seven halt their collective refusal to use a new South Suburban Airport in metropolitan Chicago and a requirement that competitive hub-and-spoke operations be established in metro Chicago to compete with United and American.
The State Attorneys General should initiate civil damage actions to recover treble damages for the billions of dollars per year in excess monopoly profits in airfare overcharges that have been charged at the Big Seven's Fortress Hubs. The Illinois Attorney General should bring suit to recover treble damages for the hundreds of millions of dollars in monopoly overcharges by American and United at Fortress O'Hare. On a multiple year basis in Illinois alone, the treble damages recoverable for consumers would exceed several billion dollars.
The GAO and the Department of Justice should undertake an immediate and detailed audit of all federal funds that may have been used to further the refusal of the other members of the Big Seven to compete with United and American in metropolitan Chicago--particularly the campaign by the airlines and Chicago to ``Kill Peotone''.
The United States Department of Transportation should withhold any further approvals of federal funds for expansion of the United and American duopoly at Fortress O'Hare.
The House and Senate Judiciary Committees should conduct immediate hearings on these issues.
Our Governor and our two United States Senators, the Speaker of the House, and our Illinois Attorney General should be respectfully asked what specific actions they will take to (1) break up the Fortress Hub system--particularly Fortress O'Hare; (2) bring new hub-and-spoke competitors into the Chicago market; (3) recover the billions in excess monopoly profits from the Fortress O'Hare overcharges; (4) prevent the Big Seven from continuing to refuse to use the new capacity provided by the South Suburban Airport; and (5) assemble the federal and state resources needed to rapidly build the South Suburban Airport.
Our Governor should hold fast to his promise not to permit any additional runways at O'Hare. To do otherwise would simply enhance and expand the monopoly power of Fortress O'Hare and doom the opportunity to bring in new competition into the region at the South Suburban Airport.
The two candidates for President of the United States--both of whom have likely received large campaign contributions from the Big Seven--should be respectfully asked what they will do to break up the Fortress Hub system nationally and Fortress O'Hare in particular. Vice President Gore in particular should be asked why his administration has for the past eight years looked the other way while the Big Seven has used violations of the nation's antitrust laws to literally steal billions of dollars from American consumers. Mr. Gore should also be asked to explain why his administration has blocked development of new competitive capacity in metro Chicago--i.e. a new South Suburban Airport--at every turn. Finally, Mr. Bush should be asked specifically what he will do to build the South Suburban Airport.
conclusion
The monopoly abuses of the Fortress Hub system--and especially the abuses of Fortress O'Hare and the refusal of the Big Seven to compete in metropolitan Chicago--are a national disgrace. It's time to end it.
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Suburban O'Hare Commission--Executive Summary
A study prepared by the Suburban O'Hare Commission concludes that the major airlines have committed per se violations of federal antitrust laws by refusing to compete with each other in Fortress Hub markets, such as in the metro Chicago region now dominated by ``Fortress O'Hare''.
The glaring example of these monopolistic practices are documented by the major airline's letter to former Illinois Gov. Jim Edgar which, in effect, said if the state builds a new airport in Chicago's southern suburbs, ``we won't come.''
That leaves United and American airlines, which control over 80 percent of the air traffic at O'Hare in an unchallenged market position. It would be as if Ford Motor Company told General Motors, ``If you agree not to sell cars in Chicago, we will agree not to compete with you in Los Angeles.''
SOC's major findings include:
The de facto agreement among the ``Big Seven'' airlines--Northwest, United, American, Delta, US Air, Continental and Trans World--not to compete in each others hub market is the heart of the monopoly problem.
The resulting fortress hub monopolies are costing American air travelers billions of dollars annually in monopoly induced higher fares, especially the fares charged to time-sensitive business travelers and ``spoke'' passenger who must connect through the hub to get to their ultimate destinations.
The Big Seven's geographic market allocation violates the nation's antitrust laws, based on clear and repeated Supreme Court decisions which have roundly condemned arrangements to carve up geographic markets horizontally.
In Chicago, the clear violation of the antitrust law is demonstrated by the abandonment by major airlines of meaningful competition to United and American at O'Hare and the announcement that they would not use a South Suburban Airport if built.
The airlines can't defend their anti-competitive practices with the ``Noerr-Pennington'' doctrine, which asserts that petitioning the government to help the industry engage in antitrust actions is protected under Free Speech guarantees. Case law doesn't protect anti-competitive practices that have evolved independent of any government authorization, as in the present case.
Nor can the airlines or Chicago defend themselves by the
``state action'' doctrine, which allows states, as a matter of federalism, to consciously participate in monopoly practices. For this defense to succeed, Supreme Court decisions require that the state must clearly endorse and supervise the monopoly practices. Here there has been no such approval of the Fortress Hub monopoly abuses by the State of Illinois.
Chicago and its officials are not immune from antitrust law liability for helping the major airlines avoid competing with the United/American cartel at O'Hare.
Federal taxpayer funds may have been used to suppress competition and violate antitrust laws in the Chicago market.
The Clinton administration has not only looked the other way in not bringing antitrust enforcement action to break up the Fortress Hub system, but has affirmatively assisted Chicago and United and American in blocking significant new competition from entering the region by blocking development of a new regional airport in metro Chicago.
The lifting of slot limitations will not allow significant competition to enter the Chicago market. Instead--as predicted by Senator Fitzgerald and Congressman Hyde--the lifting of the slots will be accompanied by massive increase in delays and by United and American simply expanding their monopoly control at the airport.
Construction of a new runway for ``delay reduction'' is simply subterfuge to expand the size of United and American's Fortress Hub operation at O'Hare. Building a new runway at O'Hare will make the monopoly problem--and resultant air fare overcharges--even worse. Moreover, it will doom the economic viability of the New South Suburban Airport.Recommendations
Based on these findings, SOC recommends:
Investigations by the U.S. Attorney General and U.S. Attorney for Northern Illinois into activities by the airlines, the city of Chicago, consultants and other third parties which have been used to protect and expand the Fortress Hub system nationally--and in particular to prevent new airport development in the metro Chicago region.
Civil action by the Attorney General and U.S. Attorney here to break up the Fortress Hub system and to compel the major airlines to stop their refusal to compete in metro Chicago.
Action by state attorneys general to recover treble damages for fliers who were charged billions of dollars in excess fares as a result of the Fortress Hub system.
A Government Accounting Office and Department of Justice audit of federal taxpayer funds to subsidies that abetted the antitrust violations, particularly efforts to kill the South Suburban Airport.
Governor Ryan should hold fast to his promise not to permit any additional runways at O'Hare. To allow additional runways would simply enhance and expand the monopoly power of Fortress O'Hare and doom the opportunity to bring in new competition into the region by the South Suburban Airport.
The withholding of U.S. Transportation Department of any more federal funds for expansion of the United and American duopoly at Fortress O'Hare.
An explanation and action by Illinois' highest elected officials as to what they will do to break up the Fortress O'Hare monopoly and provide for a new south suburban airport.
A clear statement by Republican and Democratic candidates for president to state their positions on Fortress Hubs, especially O'Hare and the role of the federal government in either breaking up Fortress O'Hare or building new capacity for new competition at the South Suburban Airport.
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Study Finds Major Airlines and Chicago Violate Federal Antitrust Laws
To Support High Monopoly Fares and Block New Competition
Bensenville, IL, May 21, 2000.--The nation's major airlines have committed serious violations of U.S. antitrust laws by refusing to compete with each other in ``Fortress Hub'' markets, including Chicago, a study by the Suburban O'Hare Commission concludes.
The study (entitled ``If You Build It, We Won't Come: The Collective Refusal of the Major Airlines to Compete in the Chicago Air Travel Market'') calls for an investigation by the Justice Department into the anti-competitive practices by the airlines, and also by the city of Chicago, its consultants and third party allies, which have been complicit in the antitrust violations. Based on the study, SOC officials also called for:
U.S. Attorney General Janet Reno to begin civil action to break up the hub monopolies.
State attorneys general to recover treble damages for fliers who have been billed billions of dollars in excessive fares made possible by the monopolistic practices. The U.S. Transportation Department to withhold any more federal funds for the expansion, and further strengthening, of the United and American airlines' cartel at O'Hare Airport in Chicago.
General Accounting Office and Department of Justice audits of funds that have been used to abet the antitrust violations, including the airlines' and Chicago Mayor Richard M. Daley's efforts to kill a proposed hub airport in Chicago's south suburbs.
Governor Ryan to hold to his firm commitment not to permit new runways at O'Hare since such runways would expand United's and American's Fortress Hub monopoly at O'Hare and would doom the economic justification for the new South Suburban Airport.
SOC is a government agency representing more than 1 million residents who live in communities surrounding O'Hare airport. The study alleges that the airlines, the city of Chicago, its consultants and allies have used millions of dollars of taxpayers' money to thwart a south suburban airport that would bring competition to the United and American airlines' cartel at O'Hare and to expand the Fortress Hub monopoly at O'Hare.
``The antitrust violations are as clear and as egregious as if Ford said to General Motors, `We won't compete against you in Chicago, if you agree not to compete against us by selling cars in Los Angeles' '' said John Geils, SOC chairman and mayor of Bensenville, which borders O'Hare Airport. ``The major airlines even went so far as to write two governors of Illinois, in their infamous `If you build it, we won't come' letters that they would not use a south suburban airport. This extraordinarily pubic flaunting of the nation's antitrust laws simply cannot be tolerated.''
The heart of the antitrust violations, according to the study, is found in the de facto agreement among the big seven airlines--Northwest, United, American, Delta, US Air Continental and Trans World--to not significantly compete in each others' hub markets. The resulting domination by these airlines of their ``own'' airports (such as Delta in Atlanta, TWA in St. Louis and Northwest in the Twin Cities), forces fliers, especially time-sensitive business travelers, billions of dollars in unwarranted and additional fares, government studies have shown.
``Taxpayers should be concerned that millions of dollars of federal money, raised in part through taxes on every passenger using O'Hare, among other airports, have gone towards financing costly public relations and political lobbying campaigns to support this restraint of trade,'' said Craig Johnson, vice president of SOC and mayor of Elk Grove Village. ``At every turn, the recommendation of expert panels to relieve the pressure on O'Hare and the national aviation system by building an airport in Chicago's south suburbs has been stymied by this campaign. It begins with two airlines' insatiable desire to dominate the Chicago market and is abetted by other major airlines interested in protecting their own turf. And it is carried out by a compliant Chicago mayor who is dependent on the political spoils of a monopolistic O'Hare airport and those who share in those spoils--contractors, political consultants, big public relations firms, concessionaires and their friends in corporate board rooms and the media.''
Said Geils: ``The antitrust movement 100 hundred years ago was aimed at breaking up precisely this sort of attack on the public and consumers. After a century, we don't need new laws. What we need are responsible public officials who won't look the other way, who will carry out the sworn duties of their office.''
The hub-and-spoke airline market was made possible by aviation deregulation two decades ago, which gave commercial carriers the right to compete where, when and at what price they wanted. But instead of the robust competition that deregulation was intended to spawn, it led to increasing concentrations of power of separate airlines at separate
``Fortress Hub'' airports. While the industry will argue that this leads to economies of scales that are passed along to some air travelers in the form of price savings, government and independent studies show that large numbers of travelers--especially time-sensitive business travelers--are actually paying billions more.
The costs, said Geils, are paid in more than just higher fares. ``They come in the form of more air pollution, more noise and more safety hazards that the airlines are willing to impose on O'Hare area communities--simply to protect and expand the Fortress O'Hare monopoly. We now live in a bizarre world where the desire to protect and profit from illegal overcharges trump the protection of public health, safety and quality of life.''
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Gore's Interest Hardly public
(By Jesse Jackson, Jr.)
At a recent Democratic fund-raiser hosted by Mayor Daley, Al Gore, the vice president and presumptive Democratic nominee, said: ``The Department of Transportation has said at the present time it's a bit premature to build a third airport . . . and I have agreed with that. What happens in the future depends on the best public interest. I know there is a strong public interest in making sure that the health of O'Hare remains very strong.''
Let's look at Gore, O'Hare and the public interest.
First, is the ``best public interest'' served through local or national control of federal transportation policy? Gore came before the Congressional Black Caucus and said that
``federalism'' would be an important issue in the 2000 campaign. Since George W. Bush is openly a ``states' righter,'' I assumed that the vice president was appealing to us for support by saying, as president, he would fight for federal policies that contributed to the public interest. Gore did that in the South Carolina flag issue, but in the case of Elian Gonzalez in Florida and a third airport in Chicago he, too, deferred to the locals.
Gore is right that the DOT has recommended against building a third airport now. However, Gore did not share the rationale for the DOT's recommendation. Did he draw his conclusion after a thoughtful series of dispassionate, hard-nosed government studies? Or were 2000 political considerations uppermost? President Clinton has told some Chicagoans privately that, ``Jesse Jr. may be right about the airport, but this is an election year.'' However, at Daley's request, the Clinton-Gore administration in 1997 took Peotone off the nation's planning list, making it ineligible for federal funds. Thus, one is led to conclude that, in Chicago, local politics control federal aviation policy, rather than the public interest. O'Hare is the new patronage system in Chicago--which includes lucrative no-bid contracts, jobs and vendor access.
Is unbalanced growth in the public interest? Chicago eventually plans to spend at least $15 billion to gold-plate O'Hare (and Midway) and build additional runways at O'Hare. For considerably less money--$2.3 billion--one could build four runways and 140 gates and, more important, achieve balanced economic growth. A recent downtown business study said current plans will add $10 billion to the economy around O'Hare and 110,000 new jobs. Such a plan will meet Chicago's transportation needs for the foreseeable future and ``keep the health of O'Hare . . . very strong,'' as Gore desires. But such a policy will kill Peotone and its potential 236,000 new jobs, and will lead to increased class and caste segregation in the Chicago metropolitan area--a community already well known for such patterns. Was that understanding part of Gore's calculation of the ``public interest'' when he affirmed O'Hare and negated Peotone?
The top 11 businesses in the 2nd Congressional District, with nearly 600,000 residents, employ a mere 11,000 people--one job for every 60 people. By contrast, more than 100,000 people go to work in Elk Grove Village, a city of 36,000 people--three jobs for every person. The effect of Gore's position on O'Hare will only add to this disparity. Apparently, Gore sees the option as either a ``zero sum'' game--if we build Peotone it will hurt O'Hare--or he is willing to accept the consequences of unbalanced growth that would make the southern part of Chicago and Cook County even poorer, blacker, more segregated and dependent on government and taxpayers. Is Gore claiming that such economic imbalance and racial segregation are in the public interest?
Are increased class and caste disparities in the political interests of Gore? Quite naturally, politicians representing areas of excess private jobs will want lower taxes and less government--the Republican agenda. My area, in desperation, will turn to the government as the lifeboat of last resort to keep it afloat at a subsistence level, even as crime soars, social needs rise, services fail and hardworking, middle-class taxpayers revolt against ``welfare cheats and free-loaders.'' With nowhere else to go, these African Americans and poor people who vote will turn to Democrats to save them. Thus, it will perpetuate a Democratic image as the party of big government and undermine Gore's efforts to downsize and
``reinvent'' government.
Balanced economic growth better serves the entire region. In Gore's own political interests, he should look anew at O'Hare and Peotone and make another assessment of what is truly in the public interest.
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Memorandum--July 13, 2002
To: Senator Peter Fitzgerald, Congressman Henry Hyde,
Congressman Jesse Jackson, Jr.From: Joe Karaganis.Re: Impact of the Lipinski/Oberstar Bill on Illinois Law and
Unchecked Condemnation Powers for Chicago to Condemn Land in Other Communities.
Sandy Murdock asked me to give you some background legal analysis of the impact of the language in the Lipinski/Oberstar bill (see Sec. 3 of the bill) to create a federal law override (preemption) of the Illinois Aeronautics Act--specifically as that impact relates to expanding Chicago's power to engage in widespread condemnation and demolition of residential and business properties in other municipalities outside Chicago's boundaries.
As you know, on July 9, 2002 Judge Hollis Webster of the DuPage County Circuit Court entered a ruling declaring that Chicago had no authority under Illinois law to acquire property in other municipalities without complying first with Sec. 47 of the Illinois Aeronautics Act, 620 ILCS 5/47 which requires any municipality to first obtain a ``certificate of approval'' from the Illinois Department of Transportation before making any alteration or extension of an airport.
Prior to her ruling, Chicago had proposed to acquire and demolish over 500 homes in Bensenville before seeking a certificate of approval. In testimony at the July 9, injunction hearing before Judge Webster, the lead IDOT official in charge of the IDOT approval process (James Bildilli) testified:
1. Without judicial enforcement of the Illinois Aeronautics Act, Chicago could acquire and demolish all the homes and businesses proposed in Bensenville and Elk Grove (over 500 homes and dozens of businesses) and only after such acquisition and demolition, would IDOT some years later hold a hearing in which IDOT would hear evidence and consider whether the harm caused by the acquisition and demolition justified IDOT's approval of the project. Essentially IDOT, in reaching its decision on the certificate of approval, would hear and consider evidence of the harm caused by the acquisition and demolition and consider this harm as a basis of its decision--but only after the harm (and destruction) had been inflicted.
2. Without judicial enforcement of the Illinois Aeronautics Act, Chicago could acquire by condemnation or otherwise all of Bensenville, Wood Dale, Elk Grove Village (thousands of homes and businesses) and any other municipality--without any need for a prior certificate of approval from IDOT under Sec. 47.
Thankfully, Judge Webster rejected Chicago and IDOT's claims and applied and enforced the plain language of the statute--prohibiting Chicago from acquiring and demolishing homes and businesses in another municipality without first obtaining a certificate of approval from IDOT.
It is important for you to understand that the preemption approach of the Lipinski Bill (as well as Durbin's) will not simply federally destroy key provisions of the Illinois Aeronautics Act (namely Sec. Sec. 47, 48, and 38.01). The Lipinski legislation has the effect of destroying the entire framework that Illinois has created under the Illinois Constitution and Illinois Municipal Code for preventing abuses of the state law condemnation power by municipalities. Here is the Illinois constitutional and Illinois statutory framework as upheld and enforced by Judge Webster:
1. Under the Illinois Constitution, Chicago has only that condemnation authority to condemn lands in other municipalities for airport purposes that is expressly delegated to Chicago by the laws of the State of Illinois. Article VII, Section 7 of the Illinois Constitution. Under long standing Illinois law (``Dillon's rule'' followed in almost all of the 50 states) any powers delegated to a municipality by the General Assembly under this constitutional provision are narrowly construed against assertions of authority by the municipality.
2. The Illinois General Assembly has delegated to Chicago the authority to condemn lands in other municipalities for airport purposes in the Illinois Municipal Code) (65 ILCS 5/11-102-4) but as an essential element of that authority to condemn has expressly mandated in the Illinois Municipal Code
(65 ILCS 5/11-102-10) that this grant of authority to condemn must be in accordance with the requirements of the Illinois Aeronautics Act.
3. Acquisition of land by Chicago without complying with the Illinois Aeronautics Act is thus not only a violation of the Illinois Aeronautics Act, such failure constitutes an unlawful ultra vires action by Chicago in violation of the Illinois Constitution and the Illinois Municipal Code. Without compliance with the Illinois Aeronautics Act, Chicago has no authority under either Article VII, Section VII of the Illinois constitution and no authority under the Illinois Municipal Code to acquire land in other municipalities.
The Lipinski (and Durbin) legislation seeks to ``preempt'' and destroy the Illinois Aeronautics Act, but in doing so the Lipinski (and Durbin) legislation attempts to destroy and rewrite the framework created by the Illinois Constitution and the Illinois Municipal Code. Why not just abolish state constitutions and state statutory codes altogether and let Congress rewrite the state constitutions and state statutory codes of all 50 states?
Beyond the enormous legal implication of such action, the practical effect of the Lipinski (and Durbin) legislation is to do exactly what Judge Webster said Illinois law prohibits:
1. The Lipinski (and Durbin) legislation will ``authorize'' Chicago to condemn land in other municipalities even though no such authorization exists for Chicago to do so under the Illinois Constitution or Illinois Municipal Code.
2. The Lipinski (and Durbin) legislation will ``authorize'' Chicago to engage in unfettered condemnation authority with the ability to acquire and destroy thousands of homes and businesses in many other municipalities--all in violation of the limits on Chicago's state constitutional and state Municipal Code authority imposed by the Illinois Constitution and Illinois General Assembly.
As Senator Fitzgerald has pointed out in his remarks in his recent colloquy with Senator Durbin, the Lipinski (and Durbin) legislation would give Chicago unfettered ability to condemn properties outside the City of Chicago. If applied in other states, it would ``authorize'' one municipality
(whichever municipality Congress chose) to disregard the limits on that municipality's delegated powers created by that state's constitution and state statutory code) and to condemn land in any other municipality in that state--in total federal preemption of that state's constitution and municipal code.
As we have said before, such radical action is a blatant violation of the federalism/Tenth Amendment Structure of the federal Constitution. But even if Congress did have such power, should Congress be overriding state constitutions and municipal codes to give federal ``authorization'' to one municipality in a state to run roughshod over other municipalities in that state in violation of the state constitution and municipal statutory code?
Postscript: There is another aspect of the Lipinski preemption which may be of interest. The Lipinski bill proposes to preempt Sec. 38.01 of the Illinois Aeronautics Act, 620 ILCS 5/38.01. This section requires Chicago to obtain IDOT approval for any grant of federal funding to be used on airport projects which the Illinois General Assembly has authorized Chicago to construct. This is an important financial oversight tool (created by the Illinois General Assembly as a condition of a grant of authority to build airports) which allows the State of Illinois to engage in financial oversight of airport actions by Chicago. Given the widespread abuses in contract awards that have been documented at O'Hare, the Lipinski (and Durbin) legislation will literally ``open the chicken coop'' to widespread potential for corruption.
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July 24, 2001.Hon. Don Young,Chairman, Transportation and Infrastructure Committee,Washington, DC.
Dear Congressman Young: I am writing to you about the grave concerns I have with H.R. 2107, The End Gridlock at Our Nation's Critical Airports Act of 2001. I share the concerns of Congressmen Henry Hyde, Jerry Weller and Philip Crane, who have sent a virtually identical letter to you under separate cover. I agree that in H.R. 2107--the attempt to rebuild and expand O'Hare Airport--Congress is inappropriately violating the Tenth Amendment.
In other contexts--specifically with regard to certain human rights--I believe that the Tenth Amendment serves to place limitations on the federal government with which I disagree. Indeed, in the area of human rights, I believe new amendments must be added to the Constitution to overcome the limitations of the Tenth Amendment. However, building airports is not a human right. Therefore, in the present context, I agree that building airports is appropriately within the purview of the states.
I believe attempts by Congress to strip the authority of Governor Ryan and the Illinois Legislature over the delegation and authorization to Chicago of state power to build airports--along with the authority of governors and state legislatures in a host of other states such as Massachusetts (Logan), New York (LaGuardia and JFK), New Jersey (Newark) California (San Francisco airport), and the State of Washington (Seattle)--raise serious constitutional questions.
Under the framework of federalism established by the federal constitution, Congress is without power to dictate to the states how the states delegate power--or limit the delegation of that power--to their political subdivisions. Unless and until Congress decides that the federal government should build airports, airports will continue to be built by states or their delegated agents (state political subdivisions or other agents of state power) as an exercise of state law and state power. Further compliance by the political subdivision of the oversight conditions imposed by the State legislature as a condition of delegating the state law authority to build airports is an essential element of that delegation of state power. If Congress strips away a key element of that state law delegation, it is highly unlikely that the political subdivision would continue to have the power to build airports under state law. The political subdivision's attempts to build runways would likely be ultra vires (without authority) under state law.
Under the Tenth Amendment and the framework of federalism built into the Constitution, Congress cannot command the States to affirmatively undertake an activity. Nor can Congress intrude upon or dictate to the states, the prerogatives of the states as to how to allocate and exercise state power--either directly by the state or by delegation of state authority to its political subdivisions.
As stated by the United States Supreme Court.
[T]he Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States.
. . . We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those Acts. New York v. United States, 505 U.S. 144, at 166 (1992) (emphasis added)
It is incontestable that the Constitution established a system of ``dual sovereignty.'' Printz v. United States, 521 U.S. 898, 918 (1997) (emphasis added)
Although the States surrendered many of their powers to the new Federal Government, they retained ``a residuary and inviolable sovereignty,'' The Federalist No. 39, at 245 (J. Madison). This is reflected throughout the Constitution's text.
Residual state sovereignty was also implicit, of course, in the Constitution's conferral upon Congress of not all governmental powers, but only discrete, enumerated ones, Art. I, Sec. 8, which implication was rendered express by the Tenth Amendment's assertion that ``[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.''
This separation of the two spheres is one of the Constitution's structural protections of liberty. ``Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front. Id at 921 quoting Gregory v. Ashcroft, 501 U.S. 452 at 458 (1991)
The Supreme Court in Printz went on to emphasize that this constitutional structural barrier to the Congress intruding on the State's sovereignty could not be avoided by claiming either a) that the congressional authority was pursuant to the Commerce Power and the ``necessary and proper clause of the Constitution or b) that the federal law ``preempted'' state law under the Supremacy Clause. 521 U.S. at 923-924.
It is important to note that Congress can regulate--but not affirmatively command--the states when the state decides to engage in interstate commerce. See Reno v. Condon, 528 U.S. 141 (2000). Thus in Reno, the Court upheld an act of Congress that restricted the ability of the state to distribute personal drivers' license information. But Reno did not involve an affirmative command of Congress to a state to affirmatively undertake an activity desired by Congress. Nor did Reno involve (as proposed here) an intrusion by the federal government into the delegation of state power by a state legislature--and the state legislature's express limits on that delegation of state power--to a state political subdivision.
H.R. 2107 would involve a federal law which would prohibit a state from restricting or limiting the delegated exercise of state power by a state's political subdivision. In this case, the proposed federal law would seek to bar the Illinois Legislature from deciding the allocation of the state's power to build an airport or runways--and especially the limits and conditions imposed by the State of Illinois on the delegation of that power to Chicago. The law is clear that Congress has no power to intrude upon or interfere with a state's decision as to how to allocate state power.
A state's authority to create, modify, or even eliminate the structure and powers of the state's political subdivisions--whether that subdivision be Chicago, Bensenville, or Elmhurst--is a matter left by our system of federalism and our federal Constitution to the exclusive authority of the states. As stated by the Seventh Circuit in Commissioners of Highways v. United States, 653 F.2d 292 (7th Cir. 1981) (quoting Hunter v. City of Pittsburgh, 207 U.S. 161, 178 (1907)):
Municipal corporations are political subdivisions of the State, created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them. For the purpose of executing these powers properly and efficiently they usually are given the power to acquire, hold, and manage personnel and real property. The number, nature and duration of the powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the State. . .
. The State, therefore, at its pleasure may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the State is supreme, and its legislative body, conforming its action to the state constitution, may do as it will, unrestrained by any provision of the Constitution of the United States. Commissioners of Highways, 653 F.2d at 297
Chicago has acknowledged that Illinois has delegated its power to build and operate airports to its political subdivisions by express statutory delegation. 65 ILCS 5/11-102-1, 11-102-2 and 11-102-5. These state law delegations of the power to build airports and runways are subject to the Illinois Aeronautics Act requirements--including the requirement that the State approve any alterations of the airport--by their express terms. Any attempt by Congress to remove a condition or limitation imposed by the Illinois Legislature on the terms of that state law delegation of authority would likely destroy the delegation of state authority to build airports by the Illinois Legislature to Chicago--leaving Chicago without delegated state legislative authority to build runways and terminals at O'Hare or Midway. The requirement that Chicago receive a state permit is an express condition of the grant of state authority and an attempt by Congress to remove that condition or limitation would mean that there was no continuing valid state delegation of authority to Chicago to build airports. Chicago's attempts to build new runways would be ultra vires under state law as being without the required state legislative authority.
Very truly yours,
Jesse L. Jackson, Jr.Member of Congress.
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Statement of U.S. Representative Jesse L. Jackson, Jr. Before the U.S.
Senate Commerce Committee--Thursday, March 21st, 2002 Washington, DC
I want to commend and thank Members of the Committee on Commerce, Science and Transportation for this opportunity to again discuss the future of Chicago's airports. As you know, I sent a letter to each of you stating my opposition to this bill. Many Members responded favorably, and for that I thank them. Today, my position has not changed.
As you know, my commitment to resolving Chicago's aviation capacity crisis predates my days in Congress. I ran on this issue in my first campaign. I won on this issue. It remains my first priority. It was the subject of my first speech in Congress. And it was the topic of my first debate in Washington.
I am elated that this issue--my issue--is now before the Congress. And while I thank Members of the Senate for their interest in trying to resolving this regional and national crisis, I must say that HR 3479 as amended falls woefully short of providing an adequate, equitable solution.
Please know that I do not oppose fixing O'Hare's problems. But I have many, many grave concerns about this specific expansion plan. Concerns about cost. About safety. About environment impact. About federal precedence. And about constitutionality.
Clearly this bill sets dangerous precedence by stating that Congress--not the FAA, not Departments of Transportation, not aviation experts--but Congress shall plan and build airports. Further, it ignores the 10th Amendment to the U.S. Constitution. It guts and/or undermines state laws and environmental protections. And it sidesteps the checks-and-balances and the public hearing process.
My focus today is the same as it's always been. Finding the best fix. And that best fix is the construction of a third Chicago airport near Peotone, Illinois. The plain truth is Peotone could be built in one-third the time at one-third the cost. For taxpayers and travelers, it's a no-brainer.
Unfortunately, this bill mandates expansion of O'Hare yet pays mere lip service to Peotone. It puts the projects on two separate and unequal tracks. That is my opinion. That is also the opinion of the Congressional Research Service, whose analysis I will provide to you.
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Federal Study Confirms Airport Deal Shortchanges Peotone
An analysis released today by the independent, non-partisan research arm of Congress confirmed what Peotone proponents have said all along: The Ryan-Daley airport agreement puts O'Hare on the fast track and just pays lip service to Peotone.
An analysis released today by the Congressional Research Service concludes that the proposed National Aviation Capacity Expansion Act puts the two projects on separate and unequal tracks.
The CRS analysis states that the Federal Government ``shall construct the runway redesign plan'' at O'Hare but would merely ``review'' and give ``consideration'' to the Peotone Airport project.
In reaction to the release of today's report, Congressman Jackson reiterated his opposition to the measure. ``This study unmasks the bare truth about the agreement between the Mayor and the Governor. For those claiming that the deal is good for the Third Airport, it's not. The masquerade ball is over,'' Jackson said.
``Peotone has been stuck in the paralysis of analysis for 15 years. We don't need any more reviews. We need a Third Airport,'' Jackson said. ``Peotone can be built faster cheaper, safer, and cleaner than expanding O'Hare, and presents a more secure and more permanent solution to Illinois' aviation crisis. This is shortsighted legislation and a bad deal for the public.''
The CRS report states that the Lipinski-Durbin bill
``specifically states that the (FAA) Administrator `shall construct' the runway redesign plan; however, there is no parallel language regarding the construction of the south suburban airport.''
CRS concludes that the bill ``provides for the Administrator's review of the Peotone Airport project (and) provides for the expansion of O'Hare. The provisions appear to operate independently of each other and are not drafted in parallel language, and provide different directions to the Administrator.''
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Congressional Research Service Memorandum--February 6, 2002
To: Hon. Jesse L. Jackson, Jr., Attention: George SeymourFrom: Douglas Reid Weimer, Legislative Attorney, American Law
DivisionSubject: Examination of Certain Provisions of H.R. 3479:
National Aviation Capacity Expansion Act
background
This memorandum summarizes various telephone discussions between George Seymour and Rick Bryant of your staff, and Douglas Weimer of the American Law Division. Your staff has expressed interest in certain provisions of H.R. 3470, the proposed National Aviation Capacity Expansion Act (``bill''). These provisions are examined and analyzed in the following memorandum.
The bill contains various provisions relating to the expansion of aviation capacity in the Chicago area. Among the provisions contained in the bill are provisions relating to O'Hare International Airport (``O'Hare''), Meigs Field, a proposed new carrier airport located near Peotone, Illinois
(``Peotone''), and other projects. Your office has expressed repeated concern that the news media and various commentators have reported that the bill would apparently implement the various projects in a similar manner and that similar legislative language is used to implement the various projects. The news articles that you have cited concerning the bill tend to report the various elements of the bill without distinguishing the bill language and the differences as to the means in which the various projects may be implemented.
analysis
The chief purpose of the bill it so expand aviation capacity in the Chicago area, through a variety of means. Section 3 of the bill deals with airport redesign and other issues. Your staff has focused upon the interpretation and the bill language of two particular subsections--(e) and
(f)--of Section 3, which are considered below.
``(e) South Suburban Airport Federal Funding.--The Administrator shall give priority consideration to a letter of intent application submitted by the State of Illinois or a political Subdivision thereof for the construction of the south suburban airport. The Administrator shall consider the letter not later than 90 days after the Administrator issues final approval of the airport layout plan for the south suburban airport.''
If enacted, this bill language would relate to the federal funding for the proposed airport to be constructed at Peotone. The ``Administrator'' refers to the Administrator of the Federal Aviation Administration. The Administrator is directed to give priority consideration to a letter of intent application (``application'') submitted by Illinois, or a political subdivision for the construction of the ``south suburban airport'' the proposed airport at Peotone.
The Administrator is given specific directions concerning the application and for the time consideration of the application. Concern has been expressed that the Administrator is given certain duties and directions, but that there is no specific language to ensure and/or to compel that the Administrator will comply with the Congressional mandate, if the Administrator does not choose to follow the Congressional direction. Congress possesses inherent authority to oversee the project, as well as the Administrator's compliance with the statutory requirements, by way of its oversight and appropriations functions. Congress and congressional committees have virtually plenary authority to elicit information which is necessary to carry out their legislative functions from executive agencies, private persons, and organizations. Various decisions of the Supreme Court have established that the oversight and investigatory power of Congress is an inherent part of the legislative function and is implied from the general vesting of the legislative power of Congress. Thus, courts have held that Congress' constitutional authority to enact legislation and appropriate money inherently vests it with power to engage in continuous oversight. The Supreme Court has described the scope of this power of inquiry as to be ``as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.''
Specific interest is focused on the language ``shall consider'' used in the second sentence of the subsection. In the context of this subsection, it should not necessarily be considered to mean the implementation of an accelerated approval/construction process for the airport. While these events may occur, such a course of action is not specifically provided by the legislation.
Your staff has also focused on subsection (f), dealing with the proposed federal construction at O'Hare. The bill provides:
``(f) Federal Construction.--
(1) On July 1, 2004, or as soon as practicable thereafter, the Administrator shall construct the runway redesign plan as a Federal project, if--
(A) the Administrator finds, after notice and opportunity for public comment, that a continuous course of construction of the runway design plan has not commenced and is not reasonably expected to commence by December 2, 2004;
(B) Chicago agrees in writing to construction of the runway redesign plan as a Federal project without cost to the United States, except such funds as may be authorized under chapter 471 of title 49, United States Code, under authority of paragraph (4);
(C) Chicago enters into an agreement, acceptable to the Administrator, to protect the interests of the United States Government with respect to the construction, operation, and maintenance of the runway redesign plan;
(D) the agreement with Chicago, at a minimum provides for Chicago to take over ownership and operations control of each element of the runway redesign plan upon completion of construction of such element by the Administrator;
(E) Chicago provides, without cost to the United States Government (except such funds as may be authorized under chapter 471 of title 49, United States Code, under the authority of paragraph (4)), land easements, rights-of-way, rights of entry, and other interests in land or property necessary to permit construction of the runway redesign plan as a Federal project and to protect the interests of the United States Government in its construction, operation, maintenance, and use; and
(F) the Administrator is satisfied that the costs of the runway redesign plan will be paid from sources normally used for airport development projects of similar kind and scope.
(2) The Administrator may make an agreement with the City of Chicago under which Chicago will provide the work described in paragraph (1), for the benefit of the Administrator.
(3) The Administrator is authorized and directed to acquire in the name of the United States all land, easements, rights-of-way, rights of entry, or other interests in land or property necessary for the runway redesign plan under this section, subject to such terms and conditions as the Administrator deems necessary to protect the interests of the United States.
(4) Chicago shall be deemed the owner and operator of each element of the runway reconfiguration plan under section 40117 and chapter 471 of title 49, United States Code, notwithstanding any other provision of this section or any of the provisions in such title referred to in this subsection.''
The Administrator is directed to construct the O'Hare runway plan as a Federal project if certain conditions are met: (1) construction of the runway design plan has not begun and is not expected to begin by December 1, 2004; (2) Chicago agrees to the runway plan as a Federal project without cost to the United States, with certain exceptions; (3) Chicago enters into an agreement to protect Federal Government interests concerning construction, operation, and maintenance of the runway project; (4) the agreement provides that Chicago take over the ownership and operation control of each element of the runway design plan upon its completion; (5) Chicago provides, without cost, the land, easements, right-of-way, rights of entry, and other interests in land/property as are required to allow the construction of the runway plan as a Federal project and to protect the interests of the Federal Government in its construction, operation, maintenance, and use; and (6) the Administrator is satisfied that the redesign plan costs will be paid from the usual sources used for airport development projects of similar kind and scope.
Paragraph 2 provides that the Administrator ``may'' make an agreement with Chicago, whereby Chicago will provide the work described above in paragraph (1) for the benefit of the Administrator. It should be noted that the use of the word
``may'' would appear to make this language optional, and would not necessarily require the Administrator to enter into such agreement with Chicago.
Paragraph 3 authorizes and directs the Administrator to acquire in the name of the Federal Government those property interests needed for the redesign plan, subject to the terms and conditions that the Administrator feels are necessary to protect the interests of the United States.
Paragraph 4 provides that Chicago will be deemed to be the owner and operator of each element of the runway reconfiguration plan, notwithstanding any other provision of this section.
Discussion has focused on the different legislative language used in subsection (e) and (f). Subsection (f) specifically states that the Administrator ``shall construct'' the runway redesign plan; however, there is no parallel language regarding the construction of the south suburban airport in subsection (e). The provisions of the subsections appear to be independent of each other and provide very different directions to the Administrator, Hence, it may be interpreted that subsection (f) would authorize runway construction (if certain conditions are met), and subsection (e) is concerned primarily with the review and the consideration of an airport construction plan.
It is possible that the Administrator's actions concerning the implementation of this legislation, if enacted, may be subject to judicial review. Judicial review of agency activity or inactivity provides control over administrative behavior. Judicial review of agency action/inaction may provide appropriate relief for a party who is injured by the agency's action/inaction. The Administrative Procedure Act
(``APA'') provides general guidelines for determining the proper court in which to seek relief. Some statutes provide specific review proceedings for agency actions. Subsection
(h) of the bill provides for judicial review of an order issued by the Administrator. The bill provides that the bill may be reviewed pursuant to the provisions contained at 49 U.S.C. Sec. 46110.
If the Administrator does not issue an order and judicial review is not possible under this provision, then it is possible that ``nonstatutory review'' may occur. When Congress has not created a special statutory procedure for judicial review, an injured party may seek ``nonstatutory review.'' This review is based upon some statutory grant of subject matter jurisdiction. Therefore, a party who wants to invoke nonstatutory review will look to the general grants of original jurisdiction that apply to the federal courts. It is possible that an available basis for jurisdiction in this case--if the Administrator does not carry out his/her Congressional mandate--may be under the general federal question jurisdiction statute which authorizes the federal district courts to entertain any case ``arising under'' the Constitution or the laws of the United States. An action for relief under this provision is usually the most direct way to obtain nonstatutory review of an agency action. Hence, it is possible that an action could be brought under this statute to compel the Administrator to comply with the provisions contained in the bill.
conclusion
This memo has summarized staff discussion concerning certain provisions contained in the proposed National Aviation Capacity Expansion Act. Subsection (e) provides for the Administrator's review of the Peotone Airport project. Subsection (f) provides for the expansion of O'Hare. The provisions appear to operate independently of each other, are not drafted in parallel language, and provide different directions to the Administrator. The Administrator is given certain responsibilities under both subsections. Congress possesses plenary oversight authority over federally funded projects. This would provide oversight Administrator is given certain responsibilities under both subsections. Congress possesses plenary oversight authority over federally funded projects. This would provide oversight over the Administrator and his/her actions. A judicial proceeding may be possible against the Administrator to compel the Administrator to fulfill the statutory responsibilities provided by the bill.
____
Statement of U.S. Representative Jesse L. Jackson Jr. Before the U.S. House Aviation Subcommittee--Wednesday, August 1st, 2001 Washington, DC
I want to thank Members of the House Aviation Subcommittee for this opportunity to discuss Chicago's aviation future. As you may know, I ran on this issue in 1995, and have supported expanding aviation capacity by building a third regional airport in Peotone, Illinois.
Let me begin with a personal anecdote that, from my perspective, illustrates why we're here. I won my first term in a special election and on December 14th, 1995 took the Oath of Office. Congressman Lipinski, my good friend and fellow Chicagoan whose district borders mine, was present and his was the seventh or eighth hand I shook as a new Member. He told me then: ``Young man, I want you to know that I can be very helpful to you during your stay in Congress, but you're never going to get that new airport you spoke about during your campaign.''
Since then, Congressman Lipinski has been helpful and we've worked together on many important issues. But, he's also made good on his word to block a third airport.
It is this rigid stance by many Chicago officials that's allowed a local problem to escalate into a national crisis. Once the nation's best and busiest crossroads, O'Hare is now its worst choke point--overpriced, overburdened and overwhelmed.
And to think it was avoidable. This debate dates back to 1984 when the Federal Aviation Administration determined that Chicago was quickly running out of capacity. The FAA directed Illinois, Indiana and Wisconsin to conduct a feasibility study for a new airport. The exhaustive study of numerous sites concluded almost 10 years ago that gridlock could be best avoided by building a south suburban airport. The State of Illinois then drafted detailed plans for an airport near Peotone.
Unfortunately, despite the FAA's dire warning and the State's best efforts, I watched in amazement as the City of Chicago went to extremes to thwart and delay any new capacity.
In the late 1980s, Mayor Daley mocked the idea of a third airport. By 1990, the City did an about-face and proposed building a third airport within the City. The City even initiated federal legislation creating the Passenger Facility Charge (PFC) to pay for it. But two years later the City reversed itself again and abandoned the plan, yet continued to collect $90 million a year in PFCs. This summer, the City told the Illinois Legislature that O'Hare needed no new capacity until the year 2012, then, in yet another reversal, three weeks ago declared O'Hare needed six new runways.
As the City was spending hundreds of millions of dollars on consultants to tell us that the City didn't, did, didn't, did need new capacity, it continued to be consistent on the one thing--fighting to kill the third airport.
Sadly, that opposition was never based on substantive issues--regional capacity, public safety or air travel efficiency. Instead it was rooted in protecting patronage, inside deals and the status quo. In fact, earlier this year the Chicago Tribute won a Pulitzer Prize for documenting the
``stench at O'Hare.''
Still, for eight years, City Hall leveraged the Clinton FAA to stall Peotone. The FAA, ignoring its own warnings of approaching gridlock, conspired with the city to:
(1) Mandate ``regional consensus,'' thus requiring Chicago mayoral approval for any new regional airport;
(2) Remove Peotone from the NPIAS list in 1997, after it emerged as the frontrunner. Peotone had been on the NPIAS for 12 years;
(3) Hold up the Peotone environmental review from 1997 to 2000.
In short, the same parties who created this aviation mess are now saying ``trust us to clean it up'' with H.R. 2107. But their hands are too dirty and their interests are too narrow. Proponents of this legislation claim to be taking the high road. But this is a dead end.
Fortunately, there is a better alternative. Compared to O'Hare expansion, Peotone could be built in one-third the time at one-third the cost--both important facts given that the crisis is imminent and that the public will ultimately pay for any fix.
Site selection aside, however, there is yet another, even bigger problem with H.R. 2107. It is the United States Constitution.
H.R. 2107 strips Illinois Governor George Ryan of legitimate state power in an apparent violation of the
``reserved powers'' clause of the 10th Amendment.
Under the 10th Amendment, Congress cannot command Illinois to affirmatively undertake an activity, nor can it intrude upon Illinois' prerogative to exercise or delegate its power. As stated by the United States Supreme Court: ``[T]he Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States . . . We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.'' [New York v. United States, 1992]
Supporters have cited the Commerce Clause in defending his legislation. But the Supreme Court in Printz v. United States specifically emphasized the 10th Amendment barrier to Congress intruding on a state's sovereignty by saying that it could not be avoided by claiming either, one, that congressional authority was pursuant to the Commerce Power, or, two, that federal law ``preempted'' state law under the Supremacy Clause.
Chicago has acknowledged Illinois' authority to build and operate airports by express statutory delegation through the Illinois Aeronautics Act, including the requirement that the State approve any airport alterations. Under the 10th Amendment, if Congress strips away a key element of the Illinois law, Chicago's attempt to build runways would likely be ultra vires (without authority) under Illinois law.
Moreover, H.R. 2017 converts the concept of dual sovereignty into tri-sovereignty, by going beyond states' rights to city rights. It gives Mayor Daley (and the other local officials in charge of the 68 largest airports in the country) a greater say over national aviation policy than the federal government or the fifty governors.
Indeed, H.R. 2107 sets federalism on its head. It makes about as much sense as putting the local police department in charge of national defense.
Such legislation won't improve aviation services. In fact, it increases the likelihood for a constitutional challenge that will further prolong this crisis.
So, from a practical standpoint, I urge the subcommittee to reject this measure, to reject cramming more planes into one of the nation's most overcrowded airport, to reject turning O'Hare into the world's largest construction site for the next 20 years, and to reject sticking the taxpayers with an outrageous bill.
I strongly urge the committee to reject this unprecedented, unwise and unconstitutional attack against our fifty states and our Founding Fathers. Thank you.
____
Suburban O'Hare Commission, February 13, 2002--A better Plan for Curing the O'Hare Airport Bottleneck
Chicago--A plan for relieving the Chicago aviation bottleneck was unveiled today that costs less, is more efficient, less destructive and can be realized quicker than a ``compromise'' plan that Chicago Mayor Richard M. Daley and Illinois Gov. George Ryan are trying to rush through Congress.
The plan was crafted by the Suburban O'Hare Commission, a council of governments representing a million residents living around O'Hare Airport.
The plan includes runway, terminal and other improvements at O'Hare International Airport, to make it more efficient, competitive and convenient. The plan also includes alternatives to the costly and destructive ``western access'' proposed in the Daley-Ryan plant. The centerpiece of the plan remains, as it has for well over a decade, a major hub airport in the south suburbs that had been urged by experts and government officials from three states, and would be operational now if not for obstruction from Chicago Mayor Richard M. Daley. The plan provides for many more flights to the region, and, consequently, many more jobs.
``We always have been in favor of a strong O'Hare Airport because of its importance to our communities and to the regional economy,'' said John Geils, SOC Chairman and president of the Village of Bensenville. ``This will come as a surprise only to those who have been taken in by the rhetoric of our opponents, who maliciously tried to portray us as anti-O'Hare zealots, willing to damage or even destroy O'Hare. Our plan will expand the region's aviation and economic growth; the Daley-Ryan plan will stifle that growth.
``The claimed benefits--including delay reductions, job increases, improved safety, greater competition and less noise--of the Daley-Ryan O'Hare expansion plan are untrue. We have a plan that is better for the entire region, and not just for Chicago City Hall and its big business friends.'' Geils said.
Among the improvements are a realistically modernized O'Hare, instead of the impossible attempt by Daley and Ryan to stuff ten pounds of potatoes into a five-pound sack. Terminals would be updated, with an eye to matching them with capacity and making them more user friendly. Selected runways would be widened to accommodate the large new jets, such as the A380X, thus increasing the number of passengers the airport can serve, without increasing air traffic. Western access and a bypass route would be built on airport property, skirting O'Hare to the south--as originally planned, thus avoiding the destruction of uncounted homes and businesses, as under the Daley-Ryan plan.
The SOC Solution also would increase competition at O'Hare, through terminal and other facilities improvements so that air travelers using the competition are not treated as second-class customers. Funding of O'Hare improvements would be disconnected from a complicated bonding scheme that allows United and American airlines to become more entrenched and to continue to charge anti-competitive fares. In addition, some of the lucrative gambling revenues, now going to enrich political insiders, would be used for a competitive makeover of O'Hare.
SOC's plan also would provide better safety and environmental protections. Every home impacted by noise at O'Hare and Midway would be soundproofed, instead of a select few as provided under the current, flawed standards adopted by Chicago. O'Hare neighbors would be spared the concentration of air pollution brought by a doubling of flights at what is already the state's largest single air polluter. Under the Daley-Ryan plan, O'Hare neighbors would find themselves in federally required crash zones at the end of runways, forcing them to either give up their homes or live in devalued property in great risk. Because most of the region's air traffic growth would use the South Suburban airport where pollution and safety buffers are required under current federal standards, fewer total people in the region would be subjected to health and safety risks.
Key to the SOC Solution is the construction of a truly regional hub airport in the South Suburbs, rather than an inadequate ``reliever'' airport as envisioned under the Daley-Ryan plan. Just as New York City and Washington, D.C. have more than one hub airport, a true regional airport in the South Suburbs would give Chicago the kind of potential it needs with three hub airports (O'Hare, Midway and Peotone) to maintain its aviation dominance for decades. Despite the long-made assertions by entrenched interests, such as United and American airlines, that the Chicago area didn't need a second hub airport, Midway already is developing into a hub simply because of market forces. With Midway reaching capacity in just a few years, and O'Hare already at capacity, the sounds of ``no one will come to Peotone'' no longer are heard.
Finally, the SOC Solution will protect taxpayers by creating an oversight board of improvements at all airports, including the south suburban airport and Midway.
``The SOC Solution is not a fragmented plan that simply focuses on O'Hare, which under the Daley-Ryan proposal is merely an instrument for extending the political and economic might of a select few,'' said Geils. ``Ours is a plan for a regional airport system--one that is based on common sense and what is fair and good for the entire public.''
COMPARISONS OF THE DALEY-RYAN PLAN AND THE SOC SOLUTION
------------------------------------------------------------------------
Daley-Ryan O'Hare
plan SOC Plan
------------------------------------------------------------------------
Provides Immediate Solution No--runways will not Yes--delays
to the Delay Problem at be built for years addressed
O'Hare?. and by the time immediately by FAA
they are built, recommended demand
delays will management
increase with techniques such as
increased traffic proposed for
growth. LaGuardia.
Which Plan Provides Greatest Max increase of 1,600,000 operations
Capacity Growth for Region?. 700,000 operations; capacity at South
likely much less. Suburban Airport--
far more than Daley-
Ryan plan.
Which Plan Produces Greatest Daley-Ryan O'Hare Wide open
Opportunity for New plan solidifies and opportunity for
Competition and Lower expands United- major competition--
Fares?. American monopoly both at O'Hare and
dominance--hundreds at South Suburban
of millions in Airport.
losses to Chicago
travelers each year.
Which Plan Provides Greater Daley-Ryan O'Hare Suburban O'Hare
Job Growth?. plan job growth of Commission plan
195,000 jobs provides 1.6
dependent on million new
700,000 new operations capacity
operations capacity in addition to
at O'Hare--real O'Hare--far more
capacity unlikely jobs than Daley-
and far less jobs. Ryan O'Hare plan.
Which Plan Makes Peotone A No provision in SOC plan borrows
Reality?. Daley-Ryan O'Hare from idea by
plan to actually Senator Patrick
fund and build O'Malley to use
Peotone--an huge excess
exercise in gambling income now
political rhetoric going to political
with little insiders to fund
likelihood of Peotone
success. construction.
Which Plan Produces Less Daley-Ryan O'Hare Huge non-residential
Toxic Air Pollution Impact plan makes toxic land buffer at
on Surrounding communities?. emissions at O'Hare Peotone protects
much worse--900,000 public health and
flights to 1, prevents
600,000--no residential
environmental exposures.
buffer.
Which Plan Produces Less Daley-Ryan O'Hare Huge non-residential
Noise Impact on Surrounding plan makes aircraft land buffer at
communities?. noise at O'Hare Peotone protects
much worse--900,000 against residential
flights to 1, noise exposure.
600,000--no
environmental
buffer.
Which Plan is Safer?........ Daley-Ryan O'Hare SOC plan much safer
plan reduces safety because South
margins at O'Hare-- Suburban Airport
more congested site can address
airspace, less runway safety
safety on runways concerns much
and taxiways, easier than O'Hare
occupied runway because much more
crash zones. land available.
Which Plan Provides Justice Daley-Ryan O'Hare SOC plan insures
and Equity for the South plan guarantees construction of
Side and South Suburbs?. exactly what Daley major new airport
wants--an empty with adequate
cornfield at funding.
Peotone.
Which Plan Preserves State Daley-Ryan O'Hare SOC plan preserves
Law protections?. plan destroys state and protects state
law protections for law safeguards for
public, health, the our environment,
environment, the public health and
consumer. the consumer.
Which Plan Provides Greatest Daley-Ryan O'Hare SOC plan provides
Economic Benefits Over plan has huge costs much greater
Costs?. that likely far regional capacity,
exceed the economic eliminates the
benefits. (which delay problem in
are far less than the short and long
claimed). term, and can be
built far faster,
with far less cost.
Also provides much
greater potential
for new competition
and lower fares. A
much greater
economic bang for
far less bucks.
------------------------------------------------------------------------
THE DALEY-RYAN PLAN'S ALLEGED BENEFITS AND THE REALITY
------------------------------------------------------------------------Daley-Ryan O'Hare Plan Claims Reality
------------------------------------------------------------------------
Delay Reduction Untrue. Daley-Ryan Total bad weather and good
O'Hare plan claims it reduces bad weather delays will increase
weather delays by 95% and overall dramatically under Daley-Ryan
delay by 79%. O'Hare plan.
Delay Savings Untrue. Daley-Ryan O'Hare Daley-Ryan O'Hare plan will
plan claims it will produce delay increase total delay costs by
savings of $370 million annually and hundreds of millions of
passenger delay savings of $380 dollars annually.
million annually.
Cost Claims Untrue. Daley-Ryan O'Hare Real Costs--$15 billion to $20
plan says cost is: $6.6 billion. billion.
Capacity Claims Untrue. Daley-Ryan Real Capacity of Daley-Ryan
O'Hare plan claims it will meet O'Hare plan:
aviation needs of Region.
Increase O'Hare passenger Falls far short of 76 million
``enplanements'' (boarding passengers) passenger capacity and far
from current 34 million to 76 million. short of capacity of 1,600,000
operations.
Increase O'Hare operational capacity Leaves region with huge
from 900,000 to 1,600,000 operations. capacity gap for both
passengers and aircraft
operations.
Peotone Claim untrue. Daley-Ryan O'Hare Daley-Ryan O'Hare plan destroys
plan says they will build Peotone. economic rationale and funding
for Peotone:
If Daley-Ryan O'Hare plan meets
its capacity claims, no
economic justification for
Peotone--not needed.
If Daley-Ryan O'Hare plan falls
short of capacity, $15 billion
to $20 billion spent at O'Hare
will exhaust federal and state
funding resources.
Jobs Claims untrue. Daley-Ryan O'Hare Actual jobs fall far short of
plan says it will create 195,000 jobs. the 195,000 jobs claimed
because of enormous capacity
shortfall; much greater job
growth under SOC alternative.
Financial Claims Untrue. Daley-Ryan Daley-Ryan O'Hare plan will
O'Hare plan says there is plenty of bankrupt federal airport aid
federal and airlines money to expand trust fund and United and
O'Hare and pay $15 billion to $20 American cannot afford
billion cost. billions in bonds.
Hiding the Data and Information. Daley- Daley and Ryan O'Hare plan
Ryan O'Hare plan claims based on slick stonewall on documents and
Power Point Slides--no backup data backing up their claims--
information provided. refuse to produce documents in
Freedom of Information
requests.
Monopoly Overcharge Problem. Daley-Ryan Daley-Ryan O'Hare plan will
O'Hare plan makes no mention of expand and strengthen the
monopoly overcharge problem at O'Hare-- monopoly hold United and
costing Chicago based travelers American have on Chicago
hundreds of millions of dollars per market--costing Chicago
year. As Governor-Elect George Ryan business travelers hundreds of
said, monopoly overcharges at O'Hare millions annually in
gouged travelers over $600 million per overcharges.
year.
Where is the Western Ring Road? Daley- Western Ring Road route pushed
Ryan O'Hare plan say western ring road west by Daley-Ryan O'Hare plan
is needed for O'Hare expansion; yet into valuable and important
refuse to disclose location, cost, and industrial and residential
impact on local jobs, industry, areas of Elk Grove Village and
housing. Bensenville--leading to huge
losses in jobs, tax revenues,
economic development and
residential quality of life.
Where are all the Terminals? Daley and Daley now says all but one of
Ryan say they have identified all the the new terminals shown on the
terminals needed for the Daley-Ryan Daley-Ryan O'Hare plan (new
O'Hare plan. Terminals 4 and 6) needed for
existing runways and that new
(as yet unidentified terminals
will be needed for Daley-Ryan
O'Hare plan--no locations
shown, unidentified billions
of dollars in additional
unstated costs.
Noise--the Daley Ryan New Math. Daley- There will be significantly
Ryan O'Hare plan says noise will be more noise at 1,600,000
less at 1,600,000 operations than at operations than at 900,000
900,000 operations. operations.
Toxic Air Pollution. Daley-Ryan O'Hare There will be significantly
plan makes no mention of toxic air more toxic air pollution at
pollution yet Ryan as Governor said 1,600,000 operations than at
O'Hare should not be expanded because 900,000 operations.
of toxic air pollution problem.
Benefit-Cost Analysis. Daley-Ryan Reality is that benefits of
O'Hare plan says it meets federal Daley-Ryan O'Hare plan may not
benefit-cost analysis requirements-- exceed the huge costs. It is
including requirement that federal also clear that placing the
government chose the alternative that new capacity at the new South
produces greatest net benefits. Suburban Airport rather than
an expanded O'Hare produces
far grater economic benefits
at far less cost than the
Daley-Ryan O'Hare plan.
Increased Safety Hazards. Daley and Daley-Ryan O'Hare plan creates
Ryan say their plan is safe. major safety hazards,
including: increase in traffic
incursions (collision risk),
destruction of safest runways
for bad weather winter storm
conditions (14/32s), high
congestion in O'Hare area air
space, risky runway protection
(crash zones) in occupied
areas.
Compliance With State Law. Daley and Daley and Ryan both know that
Ryan say that their plan complies with they (not some future
state law and that they are seeking governor) have both violated
federal preemption of state law only state law by failing to meet
to prevent upsetting Daley-Ryan deal the requirements of the
by a future governor. Illinois Aeronautics Act;
purpose of bill is to immunize
this illegality.
$15 Billion into the O'Hare Money Pit: Putting $15 or more billion
Problems of Corruption in Management dollars into the corrupt
of O'Hare. Daley and Ryan make no contract management system
mention of the history of rampant that infects Chicago public
corruption and kickbacks to Daley works awards--especially at
friends and cronies in O'Hare O'Hare, is pouring public
contracts or the need for safeguards resources into a cesspool. The
and reforms to insure the integrity of First Commandment of Chicago
the process. O'Hare contracts is that the
contractor has to hire one of
Daley's friends or political
associates on contract awards.
Economic Equity and Justice for the Daley-Ryan O'Hare plan calls
South Side and South Suburbs. Daley- for putting virtually all of
Ryan O'Hare plan offers little but the economic growth of
empty rhetoric for Peotone and south aviation demand at O'Hare--
suburban economic development. leaving South Side and South
Suburbs either empty promises,
or a white elephant token
airport.
------------------------------------------------------------------------
Grave Concerns Near O'Hare
(By Robert C. Herguth)
American Indian remains that were exhumed 50 years ago to make way for O'Hare Airport might have to be moved again to accommodate Mayor Daley's runway expansion plans.
That's disturbing to some Native Americans, who say they want their ancestors and relics treated with greater respect.
And it's prompting local opponents of the proposed closure of two O'Hare cemeteries--one of which has Indians--to explore whether federal laws that offer limited protection to Native American burial sites and artifacts could help them resist the city's efforts.
``Maybe the federal law might come to our aid,'' said Bob Placek, a member of Resthaven Cemetery's board who estimates 40 of his relatives, all German and German-American, are buried there. ``The dead folks out there aren't trying to be obstructionists, they're trying to rest in peace. . . . I feel it's a desecration to move a cemetery. It's a disregard for our family's history.''
Resthaven is a resting place for European settlers, their descendants and, possibly, Potawatomi.
It seems unlikely federal law, specifically the Native American Grave Protection and Repatriation Act, would lend much muscle to those opposed to Daley's plan, which calls for knocking out three runways, building four new ones and adding a western entrance and terminal.
``Primarily, the legislation applies to federal lands and tribal lands,'' said Claricy Smith, deputy regional director for the Bureau of Indian Affairs.
Even if someone made the argument that O'Hare is effectively federal land because it uses federal money, the most Resthaven proponents could probably hope for is a short delay, a say in how any disinterment takes place and, if they are Indian, the opportunity to claim the bodies of Native Americans.
``They've got a hard road,'' Smith said of those who might try to halt a Resthaven closure on the basis of Indian remains.
When O'Hare was being built five decades back, an old Indian burial ground that had become a cemetery for the area's white settlers was bulldozed. Some bodies were moved to a west suburban cemetery and some, including an unknown number of Indians, were believed to be transferred to Resthaven, according to published accounts and those familiar with local history.
``Ma used to talk about Indians being buried at Resthaven,'' said the 44-year-old Placek, who believes the Indians share a mass grave. His mother, who died in 1996, also is buried at Resthaven. ``I used to hear as a little kid Potawatomi'' were there.
Regardless of the tribe to which the dead belonged, the Forest County Potawatomi Community of Wisconsin, one of several Potawatomi bands relatively close to Chicago, plans to get involved.
``It's concerning,'' said Clarice Ritchie, a researcher for the community of about 1,000 who hadn't heard about the issue until contacted by a reporter.
``At this stage of the game, who can determine who they were specifically? But we run into this sort of circumstance in many instances throughout the state of Wisconsin, and some in Illinois, and we take care of them as if they were relatives,'' she said. ``We're all related, we're all created from God, so we do the right thing, we take care of anybody and try to see that they're either not disturbed or properly taken care of.''
``I guess we'd have to keep our mind broad as to what would be done,'' Ritchie said. ``Naturally we don't like to see graves disturbed, but somebody has already disturbed them once. . . . I guess what I'd probably do is talk to the tribal elders and spiritual people and other tribes who could be in the area and come to a conclusion of what should be done.''
Bill Daniels, one of the Potawatomi band's spiritual leaders, said spirits may not look kindly on those who move remains.
``It's not good to do that--move a cemetery or just plow over it,'' he said.
Daley's plan, which still must be approved by state and federal officials, also may displace nearby St. Johannes Cemetery, which is not believed to have any Native American bodies.
John Harris, the deputy Chicago aviation commissioner overseeing the mayor's $6 billion project, said this is the first he's heard that there might be Indian remains at Resthaven, and city officials are trying to verify it.
``I have no reason to doubt them at this time, but I have no independent knowledge,'' he said. But ``whether they're Indians or not, we would exercise an extreme level of sensitivity in the interest of their survivors.''
Resthaven, which is loosely affiliated with the United Methodist Church, has about 200 graves, some of which date to the 19th century. It's located on about 2 acres on the west side of O'Hare, in Addison Township just south of the larger St. Johannes.
Self-described ``advocate for the dead'' Helen Sclair has heard there might be Indians buried at Resthaven, but she suspects not all Native American remains were retrieved when Wilmer's Old Settlers Cemetery was closed in the early 1950s to make room for O'Hare access roads.
She said the Chicago region, which used to be home to Potawatomi, Chippewa and other Indians, doesn't have enough cemetery space, and the dead should be treated with more respect.
``We don't have much of a positive attitude toward cemeteries in Chicago,'' Sclair said. ``Do you know why? Because the dead don't pay taxes or vote. . . . Well, technically they don't vote.''
____
Rosemary Mulligan,
State Representative 55th District,
Des Plaines, IL, July 5, 2002.Hon. Jesse L. Jackson, Jr.,U.S. House of Representatives, Washington, DC.
Subject: Vote ``No'' on H.R. 3479
Dear Representative Jackson, Jr.: As an Illinois state legislator, I would like to use this opportunity to express my concern and opposition to the National Aviation Capacity Act. The issue of expansion of Chicago O'Hare Airport is extremely important but has been so misrepresented that I believe it is imperative to make a personal plea on behalf of my local residents to each member of the House of Representatives. This plan in the form it has been presented to you contains gross misrepresentations of fact and will inflict harm on the over 100,000 constituents I have taken an oath to protect.
You may not realize that ``Chicago'' O'Hare Airport is virtually an outcropping of land annexed by the City of Chicago that is over 90 percent surrounded by suburban municipalities. It is the only major city airport where the people directly impacted by airport activity do not elect the mayor or city officials that make decisions about the airport. Therefore, we have had little control or recourse over what happens at the airport. This plan represents a
``deal'' between two men and has never been debated or voted on by the Illinois General Assembly!
My family moved to Park Ridge in 1955, long before anyone had an idea of what an overpowering presence O'Hare would become. Unfortunately, the amount of land dedicated to the airport set its fate long before the current crisis. Plainly speaking, there isn't enough room to expand.
For the past several years, I and other legislators have introduced nearly a dozen measures in the Illinois General Assembly to conduct environmental studies, provide tax relief for soundproofing, defend suburban neighborhoods from unfair
``land grabs,'' require state legislative approval of any airport expansion and to generally protect the people we represent whose residences abut airport property. Because of the political make-up of our body and the great influence of Chicago's mayor, we have been unsuccessful. Our efforts and the health and safety of our constituents are ignored because of politics.
Please, before you vote on HR 3479, consider the following facts:
1. If the people who surround this airport could vote for the mayor of the City of Chicago, an agreement to expand O'Hare could not have been made. Whoever is mayor would have to take into consideration his immediate constituency.
2. Thorough environmental studies are being blocked. There are many documented health concerns related to current pollution levels. 800,000 additional flights will nearly double the environmental hazard.
3. The State of Illinois' rights are being trampled. The House of Representatives vote is setting a precedent that may impact your home state at some later date.
4. The safety of this plan has been questioned, particularly with its inadequate FAA Safety Zones. The lack of land does not allow for significant changes. It jeopardizes surrounding schools, homes and businesses.
5. No matter what configuration or expansion moves forward, O'Hare's Midwest location means it will always be impacted by weather from many directions.
6. Proponents claim a 79 percent decline in delays with reconfiguration of runways. However, when the increase of 800,000 flights is factored in, delays will increase to above their current levels.
Notwithstanding the economic benefits proponents subscribe to this project, the responsibility of elected officials must be first to the health, welfare and public safety of the people we represent.
Lastly, there exists a glaring discrepancy between the legislation before you and what has been told to Illinoisans. A simpler answer to all of the O'Hare congestion problems exists in the development of a third regional airport. The legislation has downgraded the priority of this solution and will further delay any true relief for our nation's transportation woes. This fact is omitted from news reports and official proponent propaganda.
With all due respect, I ask that you vote ``no'' on HR 3479. Let this remain a state's rights issue. Please feel free to contact me anytime if you have any questions at (847) 297-6533. Thank you for your time.
Respectfully,
Rosemary Mulligan,Illinois State Representative, 55th District.
____
National Air Traffic Controllers Association,
Chicago O'Hare Tower,
Chicago, IL, November 30, 2001.Hon. Peter Fitzgerald,U.S. Senate, Washington, DC.
Senator Fitzgerald, As requested from your staff, I have summarized the most obvious concerns that air traffic controllers at O'Hare have with the new runway plans being considered by Mayor Daley and Governor Ryan. They are listed below along with some other comments.
1. The Daley and Ryan plans both have a set of east/west parallel runways directly north of the terminal and in close proximity to one another. Because of their proximity to each other (1200') they cannot be used simultaneously for arrivals. They can only be used simultaneously if one is used for departures and the other is used for arrivals, but only during VFR (visual flight rules), or good weather conditions. During IFR (instrument flight rules, ceiling below 1000' and visibility less than 3 miles) these runways cannot be used simultaneously at all. They basically must be operated at one runway for safety reasons. The same is true for the set of parallels directly south of the terminal; they too are only 1200' apart.
2. Both sets of parallel runways closest to the terminal
(the ones referred to above) are all a minimum of 10,000' long. This creates a runway incursion problem, which is a very serious safety issue. Because of their length and position, all aircraft that land or depart O'Hare would be required to taxi across either one, or in some cases two runways to get to and from the terminal. This design flaw exists in both the Daley and the Ryan plan. A runway incursion is when an aircraft accidentally crosses a runway when another aircraft is landing or departing. They are caused by either a mistake or mis-understanding by the pilot or controller. Runway incursions have skyrocketed over the past few years and are on the NTSB's most wanted list of safety issues that need to be addressed. Parallel runway layouts create the potential for runway incursions; in fact the FAA publishes a pamphlet for airport designers and planners that urge them to avoid parallel runway layouts that force taxiing aircraft to cross active runways. Los Angeles International airport has lead the nation in runway incursions for several years. A large part of that incursion problem is the parallel runway layout; aircraft must taxi across runways to get to and from the terminals.
3. The major difference in Governor Ryan's counter proposal is the elimination of the southern most runway. If this runway were eliminated, the capacity of the new airport would be less than we have now during certain conditions (estimated at about 40% of the time). If you look at Mayor Daley's plan, it calls for six parallel east-west runways and two parallel northeast-southwest runways. The northeast-southwest parallels are left over from the current O'Hare layout. These two runways simply won't be usable in day-to-day operations because of the location of them (they are wedged in between, or pointed at the other parallels). We would not use these runways except when the wind was very strong (35 knots or above) which we estimate would be less than 1% of the time. That leaves the six east/west parallels for use in normal day-to-day operations. This is the same number of runways available and used at O'Hare today. If you remove the southern runway (Governor Ryan's counter proposal), you are leaving us five runways which is one less than we have now. That means less capacity than today's O'Hare during certain weather conditions. With good weather, you may get about the same capacity we have now. If this is the case, then why build it?
4. The Daley-Ryan plans call for the removal of the NW/SE parallels (Runways 32L and 32R). This is a concern because during the winter it is common to have strong winds out of the northwest with snow, cold temperatures and icy conditions. During these times, it is critical to have runways that point as close as possible into the wind. Headwinds mean slower landing speeds for aircraft, and they allow for the airplane to decelerate quicker after landing which is important when landing on an icy runway. Landing into headwinds makes it much easier for the pilot to control the aircraft as well. Without these runways, pilots would have to land on icy conditions during strong cross-wind conditions. This is a possible safety issue.
These are the four major concerns we have with the Daley-Ryan runway plans. There are many more minor issues that must be addressed. Amongst them are taxiway layouts, clear zones
(areas off the ends of each runway required to be clear of obstructions), ILS critical areas (similar to clear zones, but for navigation purposes), airspace issues (how arrivals and departures will be funneled into these new runways) and all sorts of other procedural type issues. These kinds of things all have to go through various parts of the FAA
(flight standards, airport certification etc.) eventually. These groups should have been involved with the planning portion from day one. Air traffic controllers at the tower are well versed on what works well with the current airport and what does not. We can provide the best advice on what needs to be accomplished to increase capacity while maintaining safety. It is truly amazing that these groups were not consulted in the planning of a new O'Hare. The current Daley-Ryan runway plans, if built as publicized, will do little for capacity and/or will create serious safety issues. This simply cannot happen. The fear is that the airport will be built, without our input, and then handed to us with expectations that we find a way to make it work. When it doesn't, the federal government (the FAA and the controllers) will be blamed for safety and delay problems.
Sincerely,
Craig Burzych,Facility Representative, NATCA-O'Hare Tower.
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House of Representatives,
Washington, DC, January 31, 2001.Re Key Points Why The Chicago Region Needs A New Airport--And
Why New O'Hare Runways Are Contrary To The Region and
Nation's Best Interests.
Hon. Andrew H. Card,Chief of Staff to the President,The White House, Washington, DC.
Dear Andy: A matter of great importance to us is the need for safe airport capacity expansion in the metro Chicago region. At your earliest convenience, we would like to schedule a meeting with you and Secretary Mineta to discuss the situation. Enclosed is a detailed memorandum summarizing our views. We are convinced that we must build a new regional airport now and, for the same reasons, we believe that construction of one or more new runways at O'Hare would be harmful to the public health, economy and environment of the region.
As set forth in that memorandum:
Most responsible observers agree that the Chicago region needs major new runway capacity now.
The question is where to build that new runway capacity--1) at a new regional airport, 2) at O'Hare, 3) at Midway, or 4) a combination of all of the above. An assessment of these alternatives reaches the following conclusions:
1. The new runways can be built faster at a new airport as opposed to O'Hare or Midway.
2. More new runway capacity can be built at a new site than at O'Hare or Midway.
3. The new runways can be built at far less cost at a new airport than at O'Hare or Midway.
4. Construction of the new capacity at a new airport will have far less impact on the environment and public health than would expansion of either Midway or O'Hare.
5. Construction of the new capacity at a new airport offers the best opportunity to bring major new competition into the region.
6. The selected alternative cannot be expansion at O'Hare and construction of a new airport. New runways at O'Hare would doom the economic feasibility of the new airport, guarantee its characterization as a ``white elephant'' and insure the expansion of the monopoly dominance of United and American Airlines in the Chicago market.
The memorandum contains a series of related questions and a detailed list of suggestions that would ensure the rapid development of major new runway capacity in the Chicago region, open the region to major new competition, and accomplish these objectives in a low-cost, environmentally sound manner.
Again, we would appreciate the opportunity to discuss these matters with you and Secretary Mineta at your earliest convenience.
Very truly yours,Henry Hyde,Jesse Jackson, Jr.
____
To: White House Chief of Staff Andrew Card.From: Congressman Henry Hyde, Congressman Jesse Jackson, Jr.Re: Key Points Why Chicago Region Needs A New Airport--And
Why New O'Hare Runways Are Contrary To The Region and
Nation's Aviation Best InterestsDate: January 31, 2001.
This memorandum summarizes our views in the debate over the need for airport capacity expansion in the metro Chicago region. For the reasons set forth herein, we are convinced that we must build a new regional airport now and, for the same reasons, believe that construction of one or more new runways at O'Hare would be harmful to the public health, economy and environment of the region.
The debate can best be summarized in a simple question and answer format.
Does the Region need new runway capacity now? Unlike The City of Chicago--which has for more than a decade privately known that the region needs new runway capacity while publicly proclaiming that new runway capacity is not needed--bipartisan leaders like Jesse Jackson, Jr. and myself have openly acknowledged the need for, and urged the construction of, new runway capacity in the region.
The need for new runway capacity is not a distant phenomenon; we should have had new runway capacity built several years ago. While 20 year growth projections of air travel demand show that the harm caused by this failure to build capacity will only get worse, the available information suggests that the region has already suffered serious economic harm for several years because of our past failure to build the new runway capacity.
If the answer to the runway question is yes--and we believe it is--the next question is where to build the new runway capacity? Though the issue has been discussed, the media, Chicago and the airlines have failed to openly discuss the alternatives as to where to build the new runway capacity--and especially, the issues, facts and impacts to the pros and cons of each alternative.
The alternatives for new runway capacity in the region are straightforward: (1) build new runways at a new airport, (2) build a new runways at O'Hare, (3) build new runways at Midway, or (4) a combination of all of the above. Given these alternatives, the following facts are clear:
1. The new runways can be built faster at a new airport as opposed to O'Hare or Midway. Simply from the standpoint of physical construction (as well as paper and regulatory planning) the new runways can be built faster at a
``greenfield'' site than they can at either O'Hare or Midway.
2. More new runway capacity can be built at a new site than at O'Hare or Midway. Given the space limitations of O'Hare and Midway, it is obvious that more new runways (and therefore more new runway capacity) can be built at a new larger greenfield site than at either O'Hare and Midway. We acknowledge that additional space can be acquired at Midway or O'Hare by destroying densely populated surrounding residential communities--but only at tremendous economic and environmental cost.
3. The new runways can be built at far less cost at a new airport than at O'Hare or Midway. Again, it is obvious that the new runways--and their associated capacity--can be built at far less cost at a ``greenfield'' site than they can at either O'Hare or Midway. Given the enormous public taxpayer resources that must be used for any of the alternatives--and the relative scarcity of public funds--the Bush Administration should compare the overall costs of building the new runway capacity (and associated terminal and access capacity) at a new airport vs. building the new capacity at O'Hare or Midway.
4. Construction of the new capacity at a new airport will have far less impact on the environment and public health than would expansion of either Midway or O'Hare. Midway, and later O'Hare, were sited and built at a time when concerns over environment and public health were far less than they are today. As a result, both existing airports have virtually no ``environmental buffer'' between the airports and the densely populated communities surrounding these airports. In contrast, the site of the new South Suburban Airport has, by design, a large environmental buffer which will ameliorate most, if not all, of the environmental harm and public health risk from the site. Indeed, prudence would suggest an even larger environmental buffer around the South Suburban site than is now contemplated. We can create the same or similar environmental buffer around O'Hare or Midway--but only at a cost of tens of billions of dollars and enormous social and economic disruption.
5. Construction of the new capacity at a new airport offers the best opportunity for bringing major new competition into the region. When comparing costs and benefits of alternatives, the Bush Administration must address the existing problem of monopoly (or duopoly) fares at ``Fortress O'Hare'' and the economic penalty such high fares are inflicting on the economic and business community in our region. Does the lack of significant competition allow American and United to charge our region's business travelers higher fares than they could if there was significant additional competition in the region? What is the economic cost to the region--in both higher fares and lost business opportunities--of the existing ``Fortress O'Hare'' business fare dominance of United and American?
The State of Illinois has stated that existing ``Fortress O'Hare'' business fare dominance of United and American costs the region many hundreds of millions of dollars per year. Bringing in one or more significant competitors to the region would bring enormous economic benefits in increased competition and reduced fares.
And the only alternative that has the room to bring in significant new competition is the new airport. Certainly the design of Chicago's proposed World Gateway program--designed in concert with United and American to preserve and expand their dominance at O'Hare--does not offer opportunities for major competitors to come in and compete head-to-head with United and American.
6. The selected alternative cannot be expansion at O'Hare and construction of a new airport. The dominant O'Hare airlines are pushing their suggestion: add another runway at O'Hare and allow a ``point-to-point'' small airport to be built at the South Suburban Site.
That is not an acceptable alternative for several reasons:
First, it presumes massive growth at O'Hare, as it is based on the assumption that all transfer traffic growth--along with the origin-destination traffic to sustain the transfer growth--stays at O'Hare. If that assumption is accepted, the airlines already know that demand growth for the traffic assumed to stay at O'Hare will necessitate not one, but two or more additional runways. This increase in traffic at O'Hare will have serious environmental and public health impacts on surrounding communities.
Second, this alternative destroys the economic justification for the new airport. With massive new capacity at O'Hare, there would be no economic need for the new airport.
Third, assuming the new airport is built anyway, as a
``compromise'', this alternative guarantees that the new airport will be a ``white elephant''--much as the Mid-America airport near St. Louis is today because of the Fortress Hub practices of the major airlines and as was Dulles International as long as Washington National was allowed to grow. With limits on the growth of National finally recognized, Dulles is now the thriving East Coast Hub for United.
related questions
If the Region needs new runways, what is the sense of spending over several billion dollars--much of it public money--to build the World Gateway Program at O'Hare if we decide that new runway capacity should be built elsewhere? If the decision is to build the new runways at O'Hare, then much of the 5-6 billion dollar terminal and roadway expansion proposed for O'Hare may be justified.
But if the decision is that the new runway capacity should be built elsewhere, then the proposed multi-billion dollar expansion makes no sense. We will be spending billions of dollars in taxpayer funds for a massive project that standing alone--without new runways--will not add any new capacity to our region.
The airlines know this fact and that is why they--and their surrogates at the Civic Committee and the Chicagoland Chamber--are pushing for new runways.
If the Region needs new runways and we wish to explore the alternative of putting the new runways in at O'Hare, what is the full cost of expanding O'Hare as opposed to constructing a new airport? If others wish to explore the alternative of an expanded O'Hare as the place to build the new runways capacity for the region, let's have an honest exploration and discussion of the full costs of expanding O'Hare with new runways and compare it to the cost of building the new airport. Chicago and the airlines already know what the components of an expanded O'Hare would be.
These components are laid out in Chicago's ``Integrated Airport Plan and include a new ``quad runway'' system for O'Hare and additional ground access through ``western access''.
Based on information available, we believe that the cost of the O'Hare expansion would exceed ten billion dollars. These costs should be compared with the costs of a new airport.
Are the delay and congestion problems experienced at O'Hare self-inflicted? Sadly, when Chicago and the major O'Hare airlines advocated lifting of the ``slot'' restrictions at O'Hare and other major ``slot'' controlled airports, the Clinton Administration and others ignored the warnings of Congressman Jackson, and myself that the airport could not accommodate the additional flights without a chaotic increase in delays and congestion. Indeed, the chaos we predicted has come true and we now have a ``Camp O'Hare'' where air traffic is managed by cancellation rather than by adequate service.
Like Cassandra, our prophecy was ignored. The Clinton Administration endorsed lifting the slot controls and chaos ensued.
But just because our warnings were ignored doesn't mean that practical solutions should continue to be ignored. The delays and congestion were predictable and certain--predicted based on delay/capacity analysis conducted by the FAA. Just as certain are the short term remedies.
Just as the congestion was brought on by overstuffing O'Hare with more aircraft operations than it can handle, the congestion and delay can immediately be reduced to acceptable levels by reducing the scheduled air traffic to the level that can be easily accommodated by O'Hare without the risk of unacceptable delays. The delay chaos was self-inflicted by ignoring the flashing warnings put out by the FAA and other experts. The solution can be easily administered by the FAA recognizing--as it has at LaGuardia--that limits must be placed on uncontrolled airline desire to overscheduled flights.
Should the short-term ``fix'' to the delays and congestion include ``capacity enhancement'' through air traffic control devices? Absent new runways, the FAA has encouraged and permitted a variety of operational devices designed to allow increased levels of departures and arrivals in a set period of time. These procedures--known as ``incremental capacity enhancement''--focus on putting moving aircraft closer together in time and space--to squeeze more operations into a finite amount of runways. Typically, this squeezing is done in low visibility, bad weather conditions because these are the conditions where FAA wants to increase capacity.
While the air traffic controllers remain mute on the safety concerns raised by these procedures, the pilots sure have not:
``We have seen the volume of traffic at O'Hare pick up and exceed anyone's expectations, so much so, that on occasion mid-airs were only seconds apart. O'Hare is at maximum capacity, if not over capacity. It is my opinion that it is only a matter of time until two airliners collide making disastrous headlines.'' Captain John Teerling, Senior AA Airline Captain with 31 years experience flying out of O'Hare January 1999 letter to Governor Ryan (emphasis added)
Paul McCarthy, ALPA's [Airline Pilots Association] executive air safety chairman, condemned the incremental capacity enhancements as threats to safety. Each one puts a small additional burden on pilots and controllers, he said. Taken together, they reduce safety margins, particularly at multiple runway airports, to the point that they invite a midair collision, a runway incursion or a controlled flight into terrain. Aviation Week, September 18, 2000 at p. 51
(emphasis added)
It is clear that FAA's constant attempts to squeeze more and more capacity out of the existing overloaded runways--through such ``enhancement'' procedures as the recently announced ``Compressed Arrival Procedures'' and other ATC changes--is incrementally reducing the safety margin so cherished by the pilots and the passengers who have entrusted their safety to them.
The answer to growth is new runways at a new airport--not jamming more aircraft closer and closer together at O'Hare. The answer to delays and congestion with existing overscheduled levels of traffic is to reduce traffic levels to the capacity of the runways without the need to jam aircraft closer and closer together.
Does the current level of operations at O'Hare (and Midway) generate levels of toxic air pollutants that expose downwind residential communities to levels of these pollutants in their communities at levels above USEPA cancer risk guidelines? Though our residents have complained for years about toxic air pollution from O'Hare, none of the state and federal agencies would pay attention. Recently however, Park Ridge funded a study by two nationally known expert firms in the field of air pollution and public health to conduct a preliminary stud of the toxic air pollution risk posed by O'Hare. That study, Preliminary Study and Analysis of Toxic Air Pollution Emissions From O'Hare International Airport and the Resultant Health Risks Caused By Those Emissions in Surrounding Residential Communities (August 2000), found that current operations at O'Hare--based on emission data supplied by Chicago--created levels of toxic air pollution in excess of federal cancer risk guidelines in 98 downwind communities. The highest levels of risk were found in those residential communities that O'Hare uses as its ``environmental buffer''--namely Park Ridge and Des Plaines.
Is the Park Ridge study valid? Park Ridge has challenged Chicago, the airlines, and federal and state agencies to come forward with any alternative findings as to the toxic air pollution impact of O'Hare's emissions on downwind residential communities. And that does not mean simply listing what comes out of O'Hare. The downwind communities are entitled to know how much toxic pollution comes out of O'Hare, where the toxic pollution from O'Hare goes, what are the concentrations of O'Hare toxic pollution when it reaches downwind residential communities, and what are the health risks posed by those O'Hare pollutants at the concentrations in those downwind communities.
Should not something be done to control and reduce the already unacceptable levels of toxic air pollution coming into downwind residential communities from O'Hare's current operations?
Should not the relative toxic pollution risks to surrounding residential communities created by the alternatives of a new airport, expanding O'Hare, or expanding Midway be added to the analysis and comparison of alternatives?
What about the monopoly problem at Fortress O'Hare and what should be done about it? We have already alluded to the factor of high monopoly fares as a consideration in choosing alternatives for the new runway capacity. But the monopoly problem of Fortress O'Hare will be relevant even if no new airport is built. The entire design of the proposed World Gateway Program is premised on a terminal concept that solidifies and expands the current market dominance of United and American at O'Hare and in the Chicago air travel market.
What can the Bush Administration do if indeed there is a monopoly air fare problem at O'Hare or monopoly dominance is costing Chicago area business travelers hundreds of millions of dollars per year?
When these questions were raised in the Suburban O'Hare Commission report, If you Build It We Won't Come: The Collective Refusal Of The Major Airlines To Compete In The Chicago Air Travel Market, Chicago and the airlines responded with smoke and mirrors. First they produced glossy charts showing that more than 70 airlines serve O'Hare. What they neglected to show was that United and American control over 80% of those flights with the remaining 60 plus airlines operating only a small percentage.
Similarly, the airlines and Chicago talked about the competitive low fares charged to passengers. What they emphasized, however, were low fares for reservations far in advance. The major business travel organizations representing business travel managers report that business travelers predominantly use unrestricted coach fares since they have to respond on short notice to business needs. An examination of fares for unrestricted business travel from Chicago to major business markets shows that these routes are dominated by United and American and that they charge extremely high
``lock-step'' fares to business travelers to these business markets.
Finally, the airlines and Chicago argued that O'Hare is
``competitive'' with fares charged to business travelers in other Fortress Hub Markets. That statement ignores the fact that all the major airlines are gouging captive business travelers in all their own Fortress Hub markets. Indeed, a repeated anecdote is the fact that a passenger from a
``spoke'' city--e.g., Springfield, Illinois--pays a lower fare for a trip to O'Hare and then to Washington D.C. than a Chicago based traveler who gets on the same plane to Washington. Why? Because the Springfield traveler has the choice of hubbing either through O'Hare or St. Louis while the Chicago based business traveler is locked into Chicago.
Where are the antitrust enforcers to break up these geographic cartels? Equally important, in addition to antitrust enforcement powers, the federal government has enormous leverage to break up the cartels through the funding approval process of the Airport Improvement Program (AIP) and Passenger Facility Charge (PFC) programs. Yet billions of federal taxpayer funds go to United and American without so much as a raised eyebrow.
What about Noise? Shouldn't we be happy to exchange some soundproofing for new runways at O'Hare? The City of Chicago has a residential soundproofing program which was created on the advice of its public relations consultants to create a spirit of ``compromise'' that would lead to acceptance of new runways at O'Hare.
But here are some facts that are little publicized:
1. Most of our residents feel that soundproofing--while improving their interior quality of life--essentially assumes that we will give up living-out-of-doors or with our windows open in nice weather.
2. Whereas many major airport cities with residential soundproofing programs are soundproofing all homes experiencing 65 DNL (decibels day-night 24-hr. average) or greater, Chicago and the airlines are only committing funds to the 70 DNL level. Result: Chicago is only soundproofing less than 10% of the homes that Chicago itself acknowledges to be severely impacted.
3. Chicago came into our communities asking to put in noise monitors to collect ``real world'' data as to the levels of noise. Yet, despite promises to share the data, Chicago refuses to share the data with our communities.
4. Instead of an atmosphere of trust, these tactics by Chicago have created additional animosity as neighbors on one side of an alley or street get soundproofing while their neighbors across that alley or street get no soundproofing. Indeed, Chicago's residential soundproofing program--because it is so limited in scope and ignores thousands of adversely impacted homes--has caused even more animosity in our communities.
In short, residential soundproofing is not the panacea that Chicago and many in the downtown media perceive it to be. Moreover, it does nothing to address the toxic air pollution and other safety related concerns of our residents.
Can we have more than one ``hub'' airport operating in the same city? Faced with the potential inevitability of a new airport, the airlines for the last two years have been arguing for an expansion of O'Hare (instead of a major new airport) with the argument that a metropolitan area cannot have more than one hub airport. Based on that premise, United and American say that the sole hub airport in metro Chicago should be O'Hare. That simply is not correct:
1. There are several domestic and international cities with more than one hubbing airport. Competing airlines create hubbing operations wherever airport space is available. Thus, there are multiple hubbing airports in metro New York (JFK and Newark), Washington, D.C., London, and Paris.
2. The Lake Calumet Airport proposed by Mayor Daley would have been a second hub airport.
3. There is simply no reason--given the size of the business and other travel origin-destination market in metro Chicago--that a new hub competitor could not establish a major presence at a new south suburban airport.
How do we fund new airport construction? The answer is simply and the same answer Mayor Daley had for the proposed Calumet Airport. Daley proposed using a mix of PFC and AIP funds to induce carriers to use the new airport. Indeed, the entire justification for his urging the passage of PFC legislation was to collect PFCs at O'Hare and use them for the new airport.
But United and American claim that the PFC revenues are
``their'' money. On the contrary, the PFC funds are federal taxpayer funds no different in their nature as taxpayer dollars than the similar ``AIP'' tax charged to air travelers. These funds don't belong to the airlines. They are federal funds collected and disbursed through a joint program administered by the FAA and the airport operator.
Nor are these federal taxpayer funds ``Chicago's'' money. Chicago is simply a tax collection agent for the federal government.
But how do we get the funds from O'Hare to the new airport? We do it the same way Mayor Daley is transferring funds from O'Hare to Gary and the same way he proposed getting federal funds collected at O'Hare to the Lake Calumet project: a regional airport authority.
suggestions
We have respectfully posed some questions and posited some answers for the President's and your consideration. We believe that a thorough and candid examination and discussion of these questions leads to only one conclusion: we should build a new airport and we should not expand O'Hare.
But more than raising questions, we also have several concrete suggestions for addressing the region's air transportation needs:
1. Let's stop the paper shuffling and build the new airport. The program we outline is this letter is virtually identical to the proposal drafted by Mayor Daley for construction of the Lake Calumet Airport. We believe that a cooperative fast-track planning and construction program for a new airport could see the new airport open for service in 3-5 years.
2. The money, resources and legal authority to build the new airport can be assembled by passage of a regional airport authority bill similar to the regional airport authority bill drafted in 1992 by Mayor Daley for the Lake Calumet project. So the Illinois General Assembly is a necessary partner in any effort. But equally important is the dominant role of the federal Administration in controlling the use of AIP and PFC funds and in assertive enforcement of federal antitrust laws. Let's put together a federal-state partnership to get the job done.
3. Give the O'Hare suburbs guaranteed protection against further expansion of O'Hare. Such guarantees are needed not only for our protection but for the viability of the new regional airport.
4. Provide soundproofing for all of the noise impacted residences around O'Hare and Midway. The new airport addresses future needs; it does not correct existing problems caused by existing levels of traffic.
5. Initiate a regulatory program to control and reduce air toxics emissions from O'Hare.
6. Fix the short-term delay and congestion at O'Hare by returning to a recognition of the existing capacity limits of the airport. The delay and congestion now experienced at O'Hare is a self-inflicted wound brought about by airline attempts to stuff too many planes into that airport. The delays and congestion will be dramatically reduced immediately by reducing scheduled traffic to a level consistent with the exiting capacity of the airport.
7. Demand a break-up and reform of the Fortress Hub anti-competitive phenomenon--both at O'Hare and at other Fortress Hubs around the nation. This can be done with either aggressive antitrust enforcement or with proper oversight of the disbursal of massive federal subsidies.
8. The entire World Gateway Program should be exmained in light of the questions raised here and should be modified or abandoned depending on the answers provided to these questions.
We would appreciate the opportunity to discuss these matters with you and Secretary Mintea at your convenience.
____
House of Representatives,
Washington, DC.
Five Reasons to Oppose the National Aviation Capacity Expansion Act (HR
3479)
Dear Colleague: This legislation to expand O'Hare International Airport is fatally flawed because it will:
1. SET A TERRIBLE PRECEDENT: This bill will allow the federal government to pre-empt state law requiring approval of airport construction and expansion--approval that requires the blessing of the state legislature. Will your state legislature be next to lose its power to decide local airport matters?
The bill also will lead to a rash of demands from various localities for priority standing for airport funding, bypassing reasonable administrative planning and environmental review processes.
2. THREATEN SAFETY AND THE ENVIRONMENT: This legislation attempts to superimpose what amounts to an airport the size of Dulles International on a land-locked airport the size of Reagan National--an absurd idea on its face. Former U.S. Department of Transportation Inspector General Mary Schiavo has called this proposal ``a tragedy waiting to happen.''
Putting 1.6 million planes a year into the O'Hare airspace already overcrowded with 900,000 flights doesn't make sense. It increases the risk of a serious accident and it jeopardizes surrounding schools, homes and businesses.
A third regional airport that can be built in one-third of the time and at one-third of the cost of expanding O'Hare.
O'Hare is already the largest polluter in the Chicago region. With expansion, noise and air pollution will increase exponentially.
3. UPROOT THOUSANDS OF FAMILIES: This legislation will destroy the single largest concentration of federally assisted affordable housing in one of the nation's most affluent counties. These are the homes that low-income people and other minorities, particularly Hispanics, depend on.
Up to 1,500 or more homes will be destroyed. These homes will be condemned or taken by eminent domain, leaving those homeowners few options to find affordable housing elsewhere.
4. THREATEN THOUSANDS OF JOBS; This legislation will destroy as much as one-third of the nation's largest contiguous industrial park, threatening tens of thousands of jobs. How many jobs will be created by the airport expansion? That remains a great mystery.
5. COST TOO MUCH: This legislation will require the expenditure of $15 billion or more once the entire infrastructure, relocation, soundproofing and other costs are figured in. This is much more costly than the $6.6 billion that supporters keep touting.
Commits Chicago, Illinois and federal taxpayers to a plan whose costs have not been adequately detailed. We have requested documentation of the costs, but have been rebuked. That is why a Freedom of Information lawsuit is pending in Illinois court.
____
Mr. Speaker, I reserve the balance of my time.
Mr. LIPINSKI. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I rise today to express my strongest possible support for H.R. 3479, the National Aviation Capacity Expansion Act of 2002. This measure will help end over 20 years of aviation gridlock at the most important crossroads of American aviation by modifying and codifying a historic agreement between Republican Governor George Ryan of Illinois and Democratic Mayor of Chicago Rich Daley that would expand and modernize O'Hare International Airport.
In December 2000, I spoke to Speaker Hastert, Governor Ryan and Mayor Daley, asking them for their help in solving this national and international aviation capacity crisis. I am very happy to say that all these men have helped in moving this legislation forward.
Chicago O'Hare is a vital economic engine in Chicago, the State of Illinois, the Midwest and the entire Nation. It serves as the only major dual hub with United and American Airlines basing significant equipment, employees and assets at the facility. O'Hare serves more than 190,000 travelers per day, nearly 73 million in the year 2000. It is the world's busiest airport in the number of passengers. Forty-seven States have direct access to O'Hare.
But O'Hare needs to be redesigned to meet the demands of today's marketplace. Designed in the 1950s, this airport has intersecting runways and a layout designed for smaller aircraft. By simply reconfiguring the airport layout, many weather-related delays could be avoided. By replacing old runways with safer, parallel configurations, delays and cancellations would be greatly reduced, eliminating delays that often ripple through the entire Nation. Ninety percent of O'Hare's modernization will be paid by airline and airport-generated funds, including passenger facility charges, landing fees, concessions and bonds. The rest of these funds will come through the regular, and I repeat, regular FAA process for airport construction, and this legislation is very clear on that point.
The Governor-Mayor agreement also includes a south suburban airport near Peotone. This legislation will ask the FAA to give full consideration to Peotone. Just as expanding O'Hare does not eliminate the need for a third airport, building Peotone will not replace O'Hare modernization. They are not mutually exclusive. Both are needed to address serious aviation capacity problems in the region and the Nation. Simply put, just as the city wants to move ahead with using its own funds to expand its own airport, this agreement allows the State to do the same for Peotone.
While expanding O'Hare and building Peotone are needed to address the region and the Nation's aviation capacity, forward thinkers will agree that even more capacity will be needed. That is why this measure includes full consideration of commercial airports at Gary, Indiana and Rockford, Illinois.
This legislation also addresses traffic congestion along O'Hare's Northwest Corridor, including western airport access, and maintains the quality of life for residents near these airports. We have carefully crafted clean air and environmental language that is acceptable to all parties involved, including 15 environmental groups and the Sierra Club. In addition, the new runway configuration will reduce by half the number of people impacted by noise, and this agreement also includes
$450 million in funds for soundproofing.
Some might call this legislation unprecedented, but it is clear that the Chicago situation is unprecedented and unique.
{time} 1615
When the Subcommittee on Aviation held a hearing on this issue in August of 2001, no other similar situation could be found where a State has veto power over a city's airport project.
In closing, Mr. Speaker, I wish to thank the gentleman from Florida
(Mr. Mica) and the gentleman from Alaska (Mr. Young) for their great help with this legislation. I would also like to thank the gentleman from Minnesota (Mr. Oberstar) for his efforts in working with me on this legislation. I agree with him that it is important that we craft a measure that is good not only for the Chicago region, but for the Nation as a whole. It is my hope that we can pass this legislation out of the House today, because I firmly believe that this bill will do more to end the aviation gridlock that plagues the American flying public than any other measure this Congress could pass.
Mr. Speaker, I reserve the balance of my time.
Mr. JACKSON of Illinois. Mr. Speaker, I yield myself 30 seconds.
Clearly, Mr. Speaker, the fact that we are debating this bill on the floor of the Congress sets a dangerous precedent by stating that Congress, not the FAA, not the Department of Transportation, not aviation experts, but Congress shall build and plan airports. That is what we are discussing today. If Congress was not planning to build an airport, we would not be here discussing this bill.
Mr. Speaker, I yield such time as he may consume to the gentleman from Illinois (Mr. Hyde), the chairman of the Committee on International Relations.
(Mr. HYDE asked and was given permission to revise and extend his remarks.)
Mr. HYDE. Mr. Speaker, my congressional district encompasses O'Hare International Airport and many of the residential communities that surround O'Hare, communities, I might add, that will lose hundreds, if not thousands, of homes and businesses to airport development should this expansion plan be approved.
Please do not be deceived because this bill is on the Suspension Calendar. As the gentleman from Illinois (Mr. Jackson) said, it is highly controversial, involves constitutional issues, antitrust issues, environmental issues and, most seriously, the issue of bulldozing an entire community of low-income homes, largely peopled by the Hispanic population.
Northern Illinois does need additional airport capacity; everyone agrees to that. O'Hare is at capacity. So the real question is whether we build a new airport that is safe and can expand with time, or whether we refurbish the old airport.
The proponents of this bill that the gentleman from Illinois (Mr. Kirk) and the gentleman from Illinois (Mr. Lipinski) are advancing want to double the amount of flights going into the busiest airport in the world each year to accommodate 1,600,000 operations a year. Opponents like the gentleman from Illinois (Mr. Jackson) and myself say, build a new airport. Build one far away from urban areas that will not do violence to the environment and one that can expand as the future of our air traffic grows.
A new airport can be built faster and cheaper than expanding O'Hare, but a lot of proponents of the bill object to that. Why? Well, I can think of two reasons. One is the City of Chicago would not own the new airport and the City of Chicago has to own that airport, and the other reason is the two major airlines that dominate O'Hare might find some competition, and competition is not a healthy thing, some people think.
This bill is corporate welfare of the most blatant sort. It is being marketed as a great leap forward for airport development; but it is a death blow to local government, because it forbids the Illinois legislature from having any voice in the deal between the City of Chicago and the governor of Illinois to double the air traffic. This bill suggests the State of Illinois has approved the deal. Well, if the Illinois general assembly is no longer relevant, if the Illinois Aeronautics Act is unimportant, I guess they are right. I do not know what they propose to do about the 10th amendment.
The City of Chicago has only those powers given to it by the Illinois general assembly. Chicago is a municipal government, a political subdivision created and empowered by the State legislature, and this State legislature has never given to Chicago or to the Governor, for that matter, the authority to, on their own, authorize the massive expansion of O'Hare. Thousands of people's homes and businesses will be bulldozed; two cemeteries with well over 1,600 graves dating back to the 1840s will be invaded by the same bulldozers.
This bill radically restructures the constitutional relationship between Congress, the States, and their municipalities. Why, it creates what amounts to a new Federal zoning law, an idea I am sure our constituents will welcome.
If, however, establishing a dangerous precedent is not reason enough to vote against this legislation, let me add some more. This legislation ratifies a deal that was struck without adequate public participation, without an open planning process; and despite the public having no say in this matter, the airlines certainly got their say. This is corporate welfare utilizing tax dollars to subsidize a monopoly.
Right now, United and American Airlines have a stranglehold on the market at home, forcing Illinois residents to pay far too much for tickets. The Government Accounting Office estimates this market lock costs Chicago travelers $623 million a year in overcharges.
This legislation will destroy two cemeteries and the single largest concentration of federally assisted affordable housing in one of the Nation's most affluent counties. These are the homes of low-income people and other minorities, particularly Hispanics. Proponents claim only 500 homes will need to be torn down; the truth is closer to 1,500.
This proposed expansion will ruin the quality of life for more than a million people living near O'Hare. It will increase air pollution in a region that is already nonconforming under Federal air regulations and will increase noise pollution to horrendous levels for those living near O'Hare.
What about safety? Putting 1.6 million planes a year into the O'Hare airspace, which is limited and already overcrowded with 900,000 flights, does not make sense. It increases a risk of a serious accident. I could go on and on and on.
Let me just say this: when the big and the powerful go after the weak and the vulnerable, usually the big and the powerful win. I certainly do not speak for the big and the powerful. I am speaking for the families whose homes are going to be taken, the families whose relatives and ancestors are buried in those graves, and I am saying that we have an expectation that this Congress will think of the human side of this, not just the economic side of it.
Moving Graves Can Be ``Royal Mess''
(By Robert C. Herguth)
In the 1990s, St. Louis' Lambert Airport moved thousands of bodies from the crumbling, mostly black Washington Park Cemetery to make way for a transit line and create a larger, flatter buffer for runways.
Trouble, it turned out, was almost as bountiful as bones.
An archaeologist hired to help with disinterment was accused of snatching limbs and yanking out teeth, supposedly for research, and later of hiding corpses to ensure he got paid. A state inspector climbed into a burial vault and held what was described as a ``mock funeral.'' There also were reports of coffins being accidentally pulverized by machinery.
``That was a royal mess,'' a person associated with the project recently remarked.
While an extreme example, the St. Louis work demonstrates how bad an already difficult and delicate process get.
And it serves as a cautionary tale as the City of Chicago--using one of the same consultants involved in the Washington Park effort--makes plans to bulldoze two historic suburban cemeteries, and 433 acres of homes and businesses, to accommodate a proposed O'Hare Airport runway expansion.
``We've thought about those kinds of things,'' said Bob Sell, referring to Lambert's problems
The Loop attorney has dozens of relatives buried at St. Johannes Cemetery, which is targeted for relocation, along with tiny Resthaven Cemetery.
``The notion of someone going to the cemetery and putting a shovel to my family member is horrible. That something could go wrong in that process, it makes me sick to my stomach.''
Like many homeowners in the proposed expansion zone, leaders of Resthaven and St. Johannes don't want to sell. One and perhaps both graveyards will fight the city in court, cemetery officials said.
The process, as of last Tuesday, is in a holding pattern because of a DuPage County judge's ruling in a different lawsuit. The judge ordered Chicago to halt land buys until it receives a state permit, something city officials believe is unnecessary and will appeal. Meanwhile, the city won't even be negotiating sales.
where to move the remains
In another room Tuesday in another part of DuPage, a different aspect of the same thorny issued played out as two of the city's hired guns met for the first time with leaders of Resthaven to ``open up the dialogue.''
That's how Jeff Boyle--a former top aide to Mayor Daley now being paid $240 an hour as a no-bid consultant--portrayed the meeting at the Bensenville Community Public Library.
Resthaven president Lee Heinrich, vice president Bob Placek and their attorney said they were there to listen to Boyle and another consultant, Robert Merryman of O.R. Colan Associates.
Merryman--after Boyle nearly canceled the meeting because of the presence of a reporter and the lawyer--outlined several options, all of which involved the city buying the cemetery land.
``Let's start with the assumption that you have to go,'' he said softly, speaking in the consoling tones of a funeral director.
``The airport could simply purchase Resthaven and Resthaven is no more,'' he said.
The second possibility, he said, would be to ``functionally replace Resthaven'' by building ``a new Resthaven'' elsewhere.
Third, he said, the cemetery could be moved to another graveyard, where ``a section can be Resthaven.''
Headstones and monuments would go with the remains, the city would cover costs, and if some families wanted relatives reburied elsewhere, that would be fine, too, he said. Relatives could decide who ``disinters and reinters the body,'' and help monitor the process, he said.
Merryman's company was involved in the Washington Park Cemetery relocation. The firm did not select the archaeologist facing the allegations of desecrating the remains and, in fact, was asked ``to come and correct the situation,'' according to Chicago Aviation Department spokeswoman Monique Bond.
The firm also helped handle the ``land acquisition aspects'' of moving graves from Bridgeton Memorial Cemetery St. Louis, which currently is being excavated to make way for new and longer runways at Lambert, said Lambert spokesman Mike Donatt.
how a cemetery is moved
Locating and moving remains can be a tough process, but it's one played out quite frequently for road, airport and other public works projects, said Randolph Richardson.
He owns Kentucky-based Richardson Corp., which does the physical part of relocating graves.
For big jobs, Richardson may bring in 15 workers in blue jeans and knee boots, and heavy equipment. After mapping a cemetery, a worker with a ``probe rod'' tries to gauge the depth of graves and directs a backhoe operator on how far to dig. ``If the grave itself is 6 feet deep, you dig down around 4\1/2\ feet, and the rest of it is hand digging,'' he said.
``Say we've got a row of 50 graves, we'd start at the end with a backhoe, the man with the probe rod is guiding the backhoe to tell him how deep to go, we dig a trench to expose those 50 graves, that allows us to get the men in there to work,'' he said.
Bodies are placed in individual wooden boxes--there are several sizes--unless coffins are intact, he said, adding that his workers may get tetanus shots before a project because of old rusty nails.
Caskets are put on trucks and driven to their new resting place, he said. His company typically charges between $1,000 and $1,500 per body.
Richardson, whose firm relocated some of the bodies from St. Louis' Washington Park, recalls some of the trouble there, but insists things usually are more smooth.
guards questioning visitors
Boyle and Chicago's first deputy aviation commissioner, John Harris, have said they want to handle their cemetery situation with dignity and sensitivity. But the city is having its own public relations headaches.
The cemeteries are outside Chicago's borders, but can only be reached by a city-owned access road monitored by city guards.
Twice this month, a guard approached a St. Johannes visitor at the cemetery, questioned the person and asked that they
``sign in.''
In the first instance, the visitor said, he was interrupted while praying at a grave site, and after refusing to sign in was met by five Chicago police cars on the access road. The visitor in the second case was the pastor of the church that owns St. Johannes.
Just before being confronted--on Wednesday, after the judge's ruling--the minister was surprised to find four O.R. Colan employees nosing around graves at St. Johannes, apparently taking down names from headstones, although they had no permission to be there.
``They said they were doing a study,'' Sell said. ``They're trespassing on private property.''
Merryman did not return phone calls. City officials were at a loss to explain.
But Roderick Drew, a spokesman for Daley, said Friday that there's been a ``change in policy'' that ``nobody will have to sign in any more.''
``Anybody who wants access to that cemetery during those posted hours will not be stopped, will not have to sign in,'' he said, adding that the sign-in ``has turned out to be a much greater inconvenience to the people who access it.''
____
NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION
Chicago O'Hare Tower,
Chicago, IL, Nov. 30, 2001.Hon. Peter Fitzgerald,U.S. Senate, Washington, DC.
Senator Fitzgerald, as requested from your staff, I have summarized the most obvious concerns that air traffic controllers at O'hare have with the new runway plans being considered by Mayor Daley and Governor Ryan. They are listed below along with some other comments.
1. The Daley and Ryan plans both have a set of east/west parallel runways directly north of the terminal and in close proximity to one another. Because of their proximity to each other (1200') the cannot be used simultaneously for arrivals. They can only be used simultaneously if one is used for departures and the other is used for arrivals, but only during VFR (visual flight rules), or good weather conditions. During IFR (instrument flight rules, ceiling below 1000' and visibility less than 3 miles) these runways cannot be used simultaneously at all. They basically must be operated as one runway for safety reasons. The same is true for the set of parallels directly south of the terminal; they too are only 1200' apart.
2. Both sets of parallel runways closest to the terminal
(the ones referred to above) are all a minimum of 10,000' long. This creates a runway incursion problem, which is a very serious safety issue. Because of their length and position, all aircraft that land or depart O'Hare would be required to taxi across either one, or in some cases two runways to get to and from the terminal. This design flaw exists in both the Daley and the Ryan plan. A runway incursion is when an aircraft accidentally crosses a runway when another aircraft is landing or departing. They are caused by either a mistake or misunderstanding by the pilot or controller. Runway incursions have skyrocketed over the past few years and are on the NTSB's most wanted list of safety issues that need to be addressed. Parallel runway layouts create the potential for runway incursions; in fact the FAA publishes a pamphlet for airport designers and planners that urge them to avoid parallel runway layouts that force taxiing aircraft to cross active runways. Los Angeles International airport has lead the nation in runway incursions for several years. A large part of their incursion problem is the parallel runway layout; aircraft must taxi across runways to get to and from the terminals.
3. The major difference in Governor Ryan's counter proposal is the elimination of the southern most runway. If this runway were eliminated, the capacity of the new airport would be less than we have now during certain conditions (estimated at about 40% of the time). If you look at Mayor Daley's plan, it calls for six parallel east-west runways and two parallel northeast-southwest runways. The northeast-southwest parallels are left over from the current O'Hare layout. These two runways simply won't be usable in day-to-day operations because of the location of them (they are wedged in between, or pointed at the other parallels). We would not use these runways except when the wind was very strong (35 knots or above) which we estimate would be less than 1% of the time. That leaves the six east/west parallels for use in normal day-to-day operations. This is the same number of runways available and used at O'Hare today. If you remove the southern runway (Governor Ryan's counter proposal), you are leaving us five runways which is one less than we have now. That means less capacity than today's O'Hare during certain weather conditions. With good weather, you may get about the same capacity we have now. If this is the case, then why build it?
4. The Daley-Ryan plans call for the removal of the NW/SE parallels (Runways 32L and 32R). This is a concern because during the winter it is common to have strong winds out of the northwest with snow, cold temperatures and icy conditions. During these times, it is critical to have runways that point as close as possible into the wind. Headwinds mean slower landing speeds for aircraft, and they allow for the airplane to decelerate quicker after landing which is important when landing on an icy runway. Landing into headwinds makes it much easier for the pilot to control the aircraft as well. Without these runways, pilots would have to land on icy conditions during strong cross-wind conditions. This is a possible safety issue.
These are the four major concerns we have with the Daley-Ryan runway plans. There are many more minor issues that must be addressed. Amongst them are taxiway layouts, clear zones
(areas off the ends of each runway required to be clear of obstructions), ILS critical areas (similar to clear zones, but for navigation purposes), airspace issues (how arrivals and departures will be funneled into these new runways) and all sorts of other procedural type issues. These kinds of things all have to go through various parts of the FAA
(flight standards, airport certification etc.) eventually. These groups should have been involved with the planning portion from day one. Air traffic controllers at the tower are well versed on what works well with the current airport and what does not. We can provide the best advice on what needs to be accomplished to increase capacity while maintaining safety. It is truly amazing that these groups were not consulted in the planning of a new O'Hare. The current Daley--Ryan runway plans, if built as publicized, will do little for capacity and/or will create serious safety issues. This simply cannot happen. The fear is that the airport will be built, without our input, and then handed to us with expectations that we find a way to make it work. When it doesn't, the federal government (the FAA and the controllers) will be blamed for safety and delay problems.
Sincerely,
Craig Bureych,Facility Representative, NATCA--O'Hare Tower.
____
ROBERT J. SELL, ELECTED SPOKESMAN,
ST. JOHN'S UNITED CHURCH OF CHRIST,
Bensenville, IL., Mar. 5, 2002.Congressman Henry J. Hyde,Rayburn House Office Building, Washington, DC.
Re. O'Hare Airport Expansion/St. John's United Church of Christ
Dear Representative Hyde: From press reports, I understand that Governor Ryan and Mayor Daley have submitted to Congress their proposal for the expansion of O'Hare Airport, which will be the subject of hearings on Wednesday, March 6th. I also understand that you will be given the opportunity to testify at these hearings.
Although I am sure that you will cover many important issues in your testimony, our hope is that you will alert the other members of Congress to an additional issue that is of great importance to me, my family and the members of Churches within your District. This issue is the treatment of two religious cemeteries that stand in the path of the runways proposed by the City of Chicago and Governor Ryan (see attached maps).
The two cemeteries are St. Johannes Cemetery (which is owned and maintained by St. John's United Church of Christ) and Resthaven Cemetery (affiliated with the Methodist Church). Most people have never heard of these cemeteries, but they serve as the final resting place of some of the first Illinois pioneers, as well as many of their modern era descendants. These cemeteries have served this purpose for over 150 years, since their first Church members were laid to rest in the 1840's.
As an example, my great, great, great grandfather, Christian Dierking came to the United States in the 1840's when the land around O'Hare was wild land. He settled in land that is now occupied by O'Hare's United Airlines Terminal. One of my other great, great, great grandfathers, Henry Kolze and his brothers, William and Frederick also came to the area in the 1840's and were heavily involved in local Republican politics in the 1850's and 1860's. The Schiller Park Historical Society has reported that Abraham Lincoln once visited property owned by William Kolze during one of his election campaigns. Together, they and their families and neighbors constructed the first Church buildings.
These individuals, their descendants and an estimated 1600 other souls lie at rest at S. Johannes Cemetery, including some buried within the last year. Hundreds of others lie at rest at Resthaven Cemetery, including one buried in the last few months. These people were mayors, business owners, farmers, factory workers, soldiers and housewives. The Chicago Sun Times has also reported that those buried at Resthaven include members of the Potowatamie tribe. But, most importantly to us, they were mothers and fathers, grandmothers and grandfathers, brothers and sisters, and children.
Although the City of Chicago's and the Governor's proposals have mentioned the relocation of homes and businesses, they curiously have failed to mention the treatment of these sacred burial grounds. Unfortunately, Church members have received letters from the Governor's office confirming that completion of the expansion plan would require removal of the cemeteries, and the Chicago Sun Times has reported the City's confirmation of this fact. The Church, its members, and the families of members past and present are understandably upset.
It is my understanding that, pursuant to Illinois law, an active cemetery may not be removed without approval of the cemetery's owner. St. John's Church, and the caretakers of Resthaven Cemetery, have stated publicly and to State of Illinois officials that they will not provide this consent, and will exercise all available remedies to protect the sanctity of their hallowed ground. It may be that Representative Lipinski's and Senator Durbin's federal legislation seeks to preempt the foregoing Illinois statutes, just as it seeks to preempt other Illinois statutes that stand in the way of the O'Hare Plan. However, we would hope that they are not at the same time attempting to discard the fundamental religious protections offered by our Constitution.
We would appreciate it if you would enter this letter into the record, to provide this important information to those deliberating about the O'hare Plan. On behalf of St. John's United Church of Christ, my family and the tens of thousands of family members of those at rest in these Cemeteries, thank you for your kind consideration and any assistance that you may be able to provide.
Very Truly Yours,
Robert J. Sell,Elected Spokesman, St. John's United Church of Christ.
____
University of Illinois,
College of Law,
Champaign, IL, March 1, 2002.Hon. Henry J. Hyde,U.S. House of Representatives,Rayburn House Office Bldg., Washington, DC.
Re: Proposed Federal Legislation Granting New Powers to the City of
Chicago
Dear Congressman Hyde: As you know, I serve as the Albert E. Jenner Professor of Law at the University of Illinois Law School. I have authored a leading course book on Constitutional Law. In addition, I co-author, along with my colleague John Nowak, the widely-used multi-volume Treatise on Constitutional Law, published by West Publishing Company. In addition to my books, I have taught and researched in the area of Constitutional Law since 1974.
I have been asked to give my opinion on the constitutionality of proposed federal legislation entitled
``National Aviation Capacity Expansion Act,'' identical versions of which have been introduced in both the Senate and the House of Representatives by Senator Durbin and Congressman Lipinski (S. 1786, HR 3479), hereafter the
``Durbin-Lipinski legislation.''
The Durbin-Lipinski legislation seeks to enact Congressional approval of a proposal to construct a major alteration of O'Hare Airport in Chicago. While this legislation focuses on Chicago and the State of Illinois, the issues raised by the legislation have serious constitutional implications for all 50 States.
There are two key components of the legislation that have been the subject of my examination.
First Section 3(a)(3) attempts to give the City of Chicago
(a political subdivision and instrumentality of the State of Illinois) the legal power and authority to build a proposed major alteration of O'Hare even though state law does not authorize Chicago to build the alteration without first receiving a permit from the State of Illinois. Chicago, as a legal entity, is entirely a creation of state--not federal law--and Chicago's authority to build airports is essentially an exercise of state law power delegated to Chicago by the Illinois General Assembly.
The requirement that Chicago first obtain a state permit is an integral and essential element of that delegation of state power. The U.S. Constitution prohibits Congress (1) from invading and commandeering the exercise of state power to build airports, and (2) from changing the allocation of state-created power between the State of Illinois and its political subdivisions. The U.S. Constitution, in short, prohibits Congress from essentially rewriting state law dealing with the delegation of state power by eliminating the conditions, restrictions, and prohibitions imposed by the Illinois General Assembly on that delegation. These constitutional restrictions on Congress' power--which prohibit Congress from requiring states to change their state laws governing cities--are often termed Tenth Amendment restrictions.
Similarly, the provisions of Section 3(f) of the proposed Durbin-Lipinski legislation are necessarily conditioned upon the existence of state law authority of Chicago to enter into agreements for a third party (the FAA) to alter O'Hare without first obtaining a permit from the State of Illinois. But Chicago has no state law authority (under the delegation of state power to build and alter airports) to enter into an agreement to engage in a massive alteration of O'Hare without a state permit. Congress cannot confer powers on a political subdivision of a State where the State has expressly limited its delegation of state power to build airports to require a state permit. Congress has no constitutional authority to create powers in an instrumentality of State law (Chicago) when the very authority and power of Chicago to undertake the actions proposed by Congress depends on compliance with--and is contrary to--the mandates of the Illinois General Assembly.
For the reasons discussed below, it is my opinion that the proposed legislation is unconstitutional.
summary of analysis
The following is a summary of my analysis:
1. Under the governing United States Supreme Court decisions of New York v. United States and Printz v. United States, which are discussed below, the proposed legislation is not supported by any enumerated power and thus violates the limitations of the Tenth Amendment of the Constitution. In these decisions, the Supreme Court held that legislation passed by Congress, purportedly relying on its exercise of the Commerce Power (nuclear waste legislation in New York and gun control legislation in Printz) was unconstitutional because the federal laws essentially commandeered state law powers of the States as instrumentalities of federal policy.
2. The same constitutional flaws afflict the proposed Durbin-Lipinski legislation. Central to the Durbin-Lipinski legislation are two provisions [sections 3(a)(3) and 3(f)] that purport to empower or authorize Chicago (a political instrumentality of the State of Illinois, and thus a city that has no authority or even legal existence independent of state law) to undertake actions for which Chicago has not received any delegation of authority from the State of Illinois and that, in fact, are directly prohibited by Illinois law when the conditions and limitations of the State delegation of authority have not been satisfied.
3. Under Illinois law, Chicago (like any other political subdivision of a State) has no authority to undertake any activity (including constructing airports) without a grant of state authority from the State of Illinois. Under Illinois law, actions taken by political subdivisions of the State
(e.g., Chicago) without a grant of authority from the State, or actions taken by a political subdivision in violation of the conditions, limitations or prohibitions imposed by the State in delegating the state authority, are plainly ultra vires, illegal, and unenforceable. The City of Chicago is a creature of state law, not federal law.
4. The power exercised by any state political subdivision
(e.g., the power to construct airports) is in reality a power of the State--not inherent in the existence of the political subdivision. For the political subdivision to have the legal authority to exercise that state power, there must be a delegation of that state power by the State to the political subdivision. Further, it is axiomatic that any such delegation of state power to a political subdivision must be exercised in accordance with the conditions, limitations, and prohibitions accompanying the State's delegation of that power.
5. In the case of airport construction, the Illinois General Assembly has enacted a statute that delegated to Chicago (and other municipalities) the state law power to construct airports explicitly and specifically subject to certain limits and conditions that the General Assembly imposed. One basic requirement is that Chicago must first comply with all of the requirements of the Illinois Aeronautics Act--including the requirement that Chicago first receive a permit (a certificate of approval) from the State of Illinois. The Illinois General Assembly has expressly provided that municipal construction or alteration of an airport without such a state permit is unlawful and ultra vires.
6. Section 3(a)(3) of the Durbin-Lipinski legislation expressly authorizes Chicago to proceed with the ``runway redesign plan'' (a multi-billion dollar modification of O'Hare) without regard to the clear delegation limitations and prohibitions imposed by the Illinois General Assembly on the state statutory delegation to Chicago of the state law power to construct airports. Illinois law explicitly says Chicago has no state law authority to build or alter airports without first complying with the Illinois Aeronautics Act, including the state permitting requirements of Sec. 47 of that Act. Even though Chicago (a political creation and instrumentality of the State of Illinois) has no power to build or modify airports (a state law power) unless Chicago obtains State approval, Section 3(a)(3) purports to infuse Chicago (which has no legal existence independent of state law) with a federal power to build airports and to disregard Chicago's fundamental lack of power under state law to undertake such actions (absent compliance with state law). Like New York v. United States and Printz v. United States the proposed Durbin-Lipinski legislation involves Congress attempting to use a legal instrumentality of a State (i.e., the state power to build airports exercised through its delegated state-created instrumentality, the city of Chicago) as an instrument of federal power. As the Supreme Court held in New York and Printz, the Tenth Amendment--and the structure of ``dual sovereignty'' it represents under our constitutional structure of federalism--prohibits the federal government form using the Commerce power to conscript state instrumentalities as its agents.
7. Similar problems articulated in New York and Printz fatally afflict Section 3(f) of the proposed Durbin-Lipinski legislation. That section provides that, if (for whatever reason) construction of the ``runway design plan'' is not underway by July 1, 2004, then the FAA Administrator (a federal agency) shall construct the ``runway redesign plan'' as a ``Federal Project''. But, Section 3(f)(1) then provides that this ``federal project'' must obtain several agreements and undertakings form Chicago--agreements and undertakings that are controlled by state law, which limits Chicago's authority to enter into such agreements or accept such undertakings. Chicago has no authority under the state law
(which confers upon Chicago the state power to construct airports) to enter into agreements with any third party (be it the United States or a private party) to make alterations of an airport without the state permit required by state statute. Thus, Chicago has no authority under state law to enter into an agreement with the FAA Administrator to have the runway redesign plan constructed by the federal government because Chicago has not received approval from the State of Illinois under the Illinois Aeronautics Act--a specific condition and prohibition of the delegation of state power (to build airports) to Chicago by the Illinois General Assembly. Just as Chicago (a creation and instrumentality of the State of Illinois) has no power or authority under state law (absent compliance with the Illinois Aeronautics Act) to enter into an agreement for the FAA to construct the runway redesign plan, Chicago also has no power or authority (absent compliance with the Illinois Aeronautics Act) to enter into the other agreements provided for in Section 3(f)(1)(B) of the Durbin-Lipinski legislation. Again, Section 3(f) is an attempt to have Congress use the Commerce power to conscript state instrumentalities as its agents. Instead of Congress regulating interstate commerce directly (which both New York v. United States and Printz allow), the Durbin-Lipinski legislation seeks to regulate how the State regulates one of its cities (which both New York v. United States and Printz do not allow).
8. The Durbin-Lipinski legislation is a law of ``general application''. There is a line of Supreme Court decisions which allow Congress to use the Commerce Power to impose obligations on the states when the obligations imposed on the States are part of laws which are ``generally applicable'' i.e., that impose obligations on the States and on private parties alike. See e.g., Reno v. Condon, 528 U.S. 141 (2000)
(federal rule protecting privacy of drivers' records upheld because they do not apply solely to the State); South Carolina v. Baker, 485 U.S. 505 (1988) (state bond interest not immune from nondiscriminatory federal income tax); Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528,
(1985) (law of general applicability, binding on States and private parties, upheld). But these cases have no application where, as here and in New York and Printz, the Congressional statute is not one of general application but is specifically directed at the States to use state law instrumentalities as tools to implement federal policy. Here the Durbin-Lipinski legislation is doubly unconstitutional, because it does not apply to private parties or even to all States but only to one State (Illinois) and its relationship to one city
(Chicago). The Durbin-Lipinski legislation proposes to use Chicago (an instrumentality of state power whose authority to construct airports is an exercise of state power expressly limited and conditioned on the limits and prohibitions imposed on that delegation by the Illinois legislature) as a federal instrumentality to implement federal policy. Congress is commandeering a state instrumentality of a single State
(Illinois) against the express statutory will of the Illinois Legislature, which has refused to confer on Chicago (an instrumentality of the State) the state law power and authority to build airports unless Chicago first obtains a permit from the State of Illinois. This is an unconstitutional use of the Commerce Power under the holdings New York and Printz and does not fall within the ``general applicability'' line of cases such as Reno v. Condon, South Carolina v. Baker, and Garcia.
analysis
Before discussing any further the specific provisions of the Durbin-Lipinski legislation, let us review some important background law.A. The Basic Legal Principles.
Cities are Creatures of the States and State Law--Not Instrumentalities of Federal Power. Normally, this controversy surrounding the proposed expansion of O'Hare Airport would be left to the state political process. Under Illinois law, the cities in this state have only the power that the State Constitution or the legislature grants to them, subject to whatever limits the State imposes. This legal principle has long been settled.
Nearly a century ago, the U.S. Supreme Court, in Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S. Ct. 40, 52 L.Ed. 151
(1907) held that, under the U.S. Constitution, cities are merely creatures of the State and have only those powers that the State decides to give them, subject to whatever limits the States choose to impose:
This court has many times had occasion to consider and decide the nature of municipal corporations, their rights and duties, and the rights of their citizen and creditors.
[Citations omitted.] It would be unnecessary and unprofitable to analyze these decisions or quote from the opinions rendered. We think the following principles have been established by them and have become settled doctrines of this court, to be acted upon wherever they are applicable. Municipal corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the state as may be [e]ntrusted to them. . . . The number, nature, and duration of the powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the state. . . . The state, therefore, at its pleasure, may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the state is supreme, and its legislative body, conforming its action to the state Constitution, may do as it will unrestrained by any provision of the Constitution of the United States.
Hunter held that a State that simply takes the property of municipalities without their consent and without just compensation did not violate due process. While Hunter is an old case, it still is the law, and the Seventh Circuit recently quoted with approval the language reprinted here.
The Illinois Aeronautics Act Expressly Limits Chicago's Power to Build and Alter. The State of Illinois has delegated to Chicago the power to build and alter airports. But that power is expressly limited by the requirement that Chicago must comply with the Illinois Aeronautics Act. And the Illinois Aeronautics Act provides that Chicago has no power to make ``any alteration'' to an airport unless it first obtains a permit, a ``certificate of approval,'' from the State of Illinois. Finally, Chicago has not obtained this certificate of approval. That fact is what has led to the proposed federal intervention.B. The Federation Problem
As mentioned above, section 3(a)(3) of the proposed federal law overrides the licensing requirements of Sec. 47 of the Illinois Aeronautics Act. This section states:
(3) The State shall not enact or enforce any law respecting aeronautics that interferes with, or has the effect of interfering with, implementation of Federal policy with respect to the runway redesign plan including sections 38.01, 47, and 48 of the Illinois Aeronautics Act.
In addition, section 3(f) authorizes Chicago to enter into an agreement with the federal government to construct the O'Hare Airport expansion. This project is called a ``Federal project,'' but Chicago must agree to construct the ``runway redesign as a Federal Project,'' and Chicago provides the necessary land, easements, etc., ``without cost to the United States.''
What this proposed legislation does is authorize the City of Chicago to implement an airport expansion approved by the Administrator of the Federal Aviation Administration. But, under state law, Chicago cannot expand O'Hare because it does not have the required state permit.
There is no doubt that the O'Hare Airport is a means of interstate commerce, and Congress may certainly impose various rules and regulations on airports, including O'Hare. Congress, for example, may decide to require airport security and require that the security agents be federal employees. Or, Congress could provide that it would build and takeover the O'Hare Airport and construct expansion if the State of Illinois refused to do so.
Congress may also use its spending power to take land by eminent domain and then construct or expand an airport, no matter what the state law provides. The limits on the spending clause are few.
But, the proposed law does not take such alternatives. It does not impose regulations on airports in general, nor does it exercise the very broad federal spending power. Nor does the proposed law authorize the federal government take over ownership and control of O'Hare Airport. Instead, it seeks to use an instrumentally of state power (i.e., the state law power to build airports as delegated to a state instrumentality, the city of Chicago) as an exercise of federal power.
The proposed federal law is stating that it is creating a federal authorization or empowerment to the City of Chicago to do that which state law provides that Chicago may not do--expand O'Hare Airport without comply with state laws that create the City of Chicago and delegate to it certain limited powers that can be exercised only if within the limits of the authorizing state legislation.
New York v. United States. The proposed federal law is very similar to the law that the Supreme Court invalidated a decade ago in New York v. United States. The law that New York invalidated singled out states for special legislation and regulated the states' regulation of interstate commerce. The proposed Durbin-Lipinski legislation singles out a State
(Illinois) for special legislation and regulates that State's regulation of interstate commerce dealing with O'Hare Airport.
While the law in this area has shifted a bit over the last few decades, it is now clear that Congress can use the Interstate Commerce Clause to impose various burdens on States as long as those laws are ``generally applicable.'' The federal law may not single out the state for special burdens. For example, Congress may impose a minimum wage on state employees in, or affecting, interstate commerce as long as Congress imposes the same minimum wage requirements on non-state workers in, or affecting, interstate commerce. Congress can regulate the States using the Commerce Clause if it imposes requirements on the States that are generally applicable--that is, if it imposes the same burdens on private employers. Congress cannot single out the States for special burdens; it cannot commandeer or take control over the states or order a state legislature to increase the home rule powers of the City of Chicago; it cannot enact federal legislation that adds to or revises Chicago's state created and limited delegated powers.
The leading case, New York v. United States, held that the Commerce Clause does to authorize the Federal Government to conscript state governments as its agents. ``Where a federal interest is sufficiently strong to cause Congress to legislate, it must do so directly; it may not conscript state governments as its agents. The proposed Durbin-Lipinski legislation will do exactly what New York prohibits it will conscript the City of Chicago as its agent and interfere with the relationship between the State of Illinois and the entity it created, the City of Chicago.
New York invalidated a legislative provision that is strikingly similar to the proposed federal Durbin-Lipinski legislation. The Court, in the New York case, considered the Low-Level Radioactive Waste Policy Amendments Act of 1985. Congress was concerned with a shortage of disposal sites for low level radioactive waste. The transfer of waste from one State to another is obviously interstate commerce. Congress, in order to deal with the waste disposal problem, crafted a complex statute with three parts, only one of which was unconstitutional. There were a series of monetary incentives, which the Court unanimously upheld under Congress' broad spending powers. Congress also authorized States that adopted radioactive waste and storage disposal guidelines to bar waste imported from States that had not adopted certain storage and disposal programs. The Court, again unanimously, relied on long-settled precedent that approves of Congress creating such trade barriers in interstate commerce.
Then the Court turned to the ``take title'' provisions and held (six to three) that they were unconstitutional. The
``take title'' provision in effect required a State to enact certain regulations and, if the State did not do so, it must
(upon the request of the waste's generator or owner), take title to and possession of the waste and become liable for all damage suffered by the generator or owner as a result of the State's failure to promptly take possession.
The Court explained that Congress could, if it wished, preempt entirely state regulation in this area and take over the radioactive waste problem. But Congress could not order the States to change their regulations in this area. Congress lacks the power, under the Constitution, to regulate the State's regulation of interstate commerce. That is what the proposed federal O-Hare Airport bill will do: it will regulate the State's regulation of interstate commerce by telling the State that it must act as if the City of Chicago has complied with the Illinois Aeronautics Act and other state rules.
In a nutshell, Congress cannot constitutionally commander the legislative or executive branches. The Court pointed out that this commandeering is not only unconstitutional (because nothing in our Constitution authorizes it) but also bad policy, because federal commandeering serves to muddy responsibility, undermine political accountability, and increase federal power.
The proposed Durbin-Lipinski legislation prohibits Illinois from applying its laws regulating one of its cities. The proposed federal law also authorizes the federal government to make an agreement with Chicago, pursuant to which Chicago will assume some significant obligations, even though present state law gives Chicago no authority to engage in this activity. As the six to three New York decision made clear:
A State may not decline to administer the federal program. No matter which path the State chooses, it must follow the direction of Congress. . . . No other federal statute has been cited which offers a state government no option other than that of implementing legislation enacted by Congress. Whether one views the take this provision as lying outside Congress' enumerated powers, or as infringing upon the core of state sovereignty reserved by the Tenth Amendment, the provision is inconsistent with the Federal structure of our Government established by the Constitution.
The proposed Durbin-Lipinski legislation is very much like the law that six justices invalidated in New York. The O'Hare bill provides that, no matter what the State chooses, ``it must follow the direction of Congress.'' The State has ``no option other than that of implementing legislation enacted by Congress.''
The Court in New York went on to explain that there are legitimate ways that Congress can impose its will on the states:
This is not to say that Congress lacks the ability to encourage a State to regulate in a particular way, or that Congress may not hold out incentives to the States as a method of influencing a State's policy choices. Our cases have identified a variety of methods, short of outright coercion, by which Congress may urge a State to adopt a legislative program consistent with federal interests. Two of these methods are of particular relevance here.
The Court then discussed those two alternatives. First, there is the spending power, with Congress attaching conditions to the receipt of federal funds. The proposed Durbin-Lipinski legislation rejects the spending power alternative. Second, ``where Congress has the authority to regulate private activity under the Commerce Clause, we have recognized Congress' power to offer States the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation.'' The proposed Durbin-Lipinski legislation rejects that alternative as well. It does not propose that Congress directly takeover and expand O'Hare Airport. Instead, it proposes that the City of Chicago be allowed to exercise power that the State does not allow the City to exercise.
New York v. United States did not question ``the authority of Congress to subject state governments to generally applicable laws.'' But Congress cannot discriminate against the States and place on them special burdens. It cannot commandeer or command state legislatures or executive branch officials to enforce federal law. Congress can regulate interstate commerce and States are not immune from such regulation just because they are States. For example, Congress can forbid employers from hiring child labor to work in coal mines, whether a private company or a State owns the coal mine and employs the workers.
Printz v. United States. Following the New York decision, the Court invalidated another federal statute imposing certain administrative duties on local law enforcement officials, in Printz v. United States. The Brady Act, for a temporary period of time, required local law enforcement officials to use ``reasonable efforts'' to determine if certain gun sales were lawful under federal law. The federal law also ``empowered'' these local officers to grant waivers of the federally prescribed 5-day waiting period for handgun purchases. Note that the proposed Durbin-Lipinski legislation will also ``empower'' the City of Chicago to do that which Illinois does not authorize the city to do.
To make the analogy even more compelling, the chief law enforcement personal suing in the Printz case said that state law prohibited them from undertaking these federal responsibilities. That, of course, is the exact position in which Chicago finds itself. State law prohibits Chicago from entering into and committing to these federal responsibilities (e.g., the agreements between Chicago and the FAA in Sec. 3(f) of the proposed Durbin-Lipinski legislation call for construction as a ``federal project'' but then require Chicago to either construct or allow construction without a permit from the State of Illnois).
We should realize that the proposed Durbin-Lipinski legislation--in commanding and singling out the State of Illinois to, in effect, repeal its legislation governing the powers delegated to the City of Chicago--is quite unusual and not at all in the tradition of federal legislation. For most of our history, Congress would explicitly only ``recommend'' or ``request'' the assistance of the governors and state legislatures in implementing federal policy. It is only in very recent times that Congress has sought explicitly to commandeer or order the legislate and executive branches of the States to implement federal policies. Because such federal legislative activity is recent, the case law in this area is recent, but the case law is clear in prohibiting this type of federal assertion of power.
New York v. United States held that Congress cannot
``command a State government to enact state regulation.'' Congress may regulate interstate commerce directly, but it may not ``regulate state governments' regulation of interstate commerce.'' The Federal Government may not
``conscript state governments as its agents.'' Congress has the ``power to regulate individuals, not States.''
In short, there are important limits on the power of the federal government to commandeer the state legislature or state executive branch officials for federal purposes. Another way to think about this issue, is that, to a certain extent, the Constitution forbids Congress from imposing what recently have been called ``unfunded mandates'' on state officials. Congress cannot simply order the States or state officials or a city to take care of a problem. Congress can use its spending power to persuade the States by using the carrot instead of the stick.
While there are those who have attacked the restrictions that New York v. United States have imposed on the Federal Government, it is worth remembering the line-up of the Court in Maryland v. Wirtz when the justices first considered this issue. That case rejected the applicability of the Tenth Amendment and held that it was constitutional for Congress to set the wages, hours, and working conditions of employees, including state employees in interstate commerce. However, Justice Douglas, who was joined by Justice Stewart, dissented. Douglas found the law to be a ``serious invasion of state sovereignty protected by the Tenth Amendment'' and
``not consistent with our constitutional federalism.'' He objected that Congress, using the broad commerce power, could
``virtually draw up each State's budget to avoid `disruptive effect[s]' '' on interstate commerce. New York v. United States prevents this result.
The ``generally applicable'' restriction is important, and it explains Reno v. Condon. Congress enacted the Driver's Privacy Protection Act (DPPA), which limited the ability of the States to sell or disclose a driver's personal information to third parties without the driver's consent. Chief Justice Rehnquist, for a unanimous Court, upheld the law as a proper regulation of interstate commerce and not violating any principles of federalism found in New York v. United States or Printz because the law was ``generally applicable.''
Reno grew out of a congressional effort to protect the privacy of drivers' records. As a condition of obtaining a driver's license or registering a car, many States require drivers to provide personal information, such as name, address, social security number, medical information, and a photograph. Some States then sell this personal information to businesses and individuals, generating significant revenue. To limit such sales, Congress enacted the DPPA, which governs any state department of motor vehicles (DMV), or state officer, employee, or contractor thereof, and any resale or re-disclosure of drivers' personal information by private persons who obtain the information from a state DMV. The Court concluded: ``The DPPA's provisions do not apply solely to States.'' Private parties also could not buy the information for certain prohibited purposes nor could they resell the information to other parties for prohibited purposes, and the States could not sell the information to the private parties for certain purposes if the private parties could not buy it for those purposes.
Unlike the law in New York, the Court concluded that the DPPA does not control or regulate the manner in which States regulate private parties, it does not require the States to regulate their own citizens, and it does not require the state legislatures to enact any laws or regulations. Unlike the law in Printz, the DPPA does not require state officials to assist in enforcing federal statutes regulating private individuals. This DMV information is an article of commerce and its sale or release into the interstate stream of business is sufficient to support federal regulation.
The DPPA is a ``generally applicable'' federal law regulating commerce because it regulates the universe of entities that participate as suppliers to the market for motor vehicle information--the states as initial suppliers and the private resellers or redisclosers of this information. ``South Carolina has not asserted that it does not participate in the interstate market for personal information. Rather, South Carolina asks that the DPPA be invalidated in its entirely, even as applied to the States acting purely as commercial sellers.''
conclusion
The proposed federal law dealing with the O'Hare Airport expansion is most likely unconstitutional because it imposes federal rules on the relationship between a city and the State that created the city. It subjects Illinois to special burdens that are not generally applicable to private parties or even to other States. It authorizes the City of Chicago to do that which Illinois now prohibits.
There is no escape from the conclusion that the proposed federal law does not regulate the behavior of private parties in interstate commerce. It does not subject the State of Illinois to ``generally applicable'' legislation. Instead, Congress is regulating the state's regulation of interstate commerce. Congress may not conscript the instrumentalities of state government and state power as tools of federal power. The case law is clear that Congress does not have the power.
Sincerely,
Ronald D. Rotunda,The Albert E. Jenner, Jr. Professor of Law.
____
Mr. KIRK. Mr. Speaker, I yield 1\1/2\ minutes to the distinguished gentleman from Illinois (Mr. Manzullo), the chairman of the Committee on Small Business, another bipartisan supporter of this legislation.
Mr. MANZULLO. Mr. Speaker, I rise in support of H.R. 3479, the National Aviation Capacity Expansion Act. I want to thank the gentlemen from Illinois (Mr. Kirk) and (Mr. Lipinski) and other members of the Illinois delegation and the surrounding region for their hard work in coming to an agreement on this legislation.
O'Hare serves as the main hub for the Nation's two largest commercial airlines, and expansion is without a doubt going to be a tremendous benefit to travelers and businesses in the northern Illinois area, as well as the Nation.
What I particularly appreciate about this legislation is that it acknowledges the role of other regional airports, especially the Greater Rockford Airport, and the role it can have in helping to alleviate congestion at O'Hare. This legislation clearly states how important it is for the FAA to consider existing infrastructure when constructing a plan to streamline traffic through O'Hare. With a runway that can land virtually any jet today at a distance of only 1 hour's drive from Chicago, Rockford Airport stands ready to immediately supplement traffic congestion at O'Hare during construction or in the future.
The efficiency of our Nation's air travel is ready for a dramatic upgrade in the Chicago area, and this bill is a critical step in addressing that need. I urge my colleagues to support its passage today.
Mr. LIPINSKI. Mr. Speaker, I yield 1\1/2\ minutes to the gentleman from Indiana (Mr. Visclosky).
(Mr. VISCLOSKY asked and was given permission to revise and extend his remarks.)
Mr. VISCLOSKY. Mr. Speaker, I appreciate the gentleman yielding me this time.
Mr. Speaker, I rise today in support of H.R. 3479, the National Aviation Capacity Expansion Act.
First, I am a supporter of increased airport capacity for the Chicago metropolitan area, and I commend the gentleman from Illinois (Mr. Lipinski) and the leadership of the Committee on Transportation and Infrastructure for achieving this equitable regional solution that will help relieve air congestion in our Nation and the Chicago region.
Second, increasing air capacity in the Chicago metropolitan area is a national concern and not just a Chicago or an Illinois problem. Air congestion is also a regional problem and it demands a regional answer. I happen to believe that the Gary/Chicago Airport has a role in helping solve the air traffic congestion problems facing the region and Nation. H.R. 3479 provides full consideration for expansion and improvement projects at the Gary/Chicago Airport.
I have worked in this body for my entire career to modernize and improve the Gary/Chicago Airport. It can play an increasingly valuable role in delivering passenger and cargo service to the area. Last year, the FAA approved the Gary/Chicago Airport's 20-year master plan. The master plan outlines the airport's existing facilities and ability to handle air traffic growth and economic forecasts.
Mr. Speaker, H.R. 3479 would guarantee that the Gary/Chicago Airport would be considered for growth and needed improvements, which will enhance its role as the Chicago airport.
Mr. JACKSON of Illinois. Mr. Speaker, I am proud to yield 6 minutes to the distinguished gentleman from Illinois (Mr. Weller).
(Mr. WELLER asked and was given permission to revise and extend his remarks.)
Mr. WELLER. Mr. Speaker, it is interesting what we have before us today. Usually Suspension Calendar legislation is noncontroversial; but today we have a proposal which most people say only affects Illinois, so most Members may not be paying attention to it. But I think it is important to note that this legislation splits the Illinois delegation right down the middle.
I stand in opposition to this legislation, and I also urge my colleagues to vote against this legislation with the hope that it is defeated and that the Committee on Transportation and Infrastructure will revisit this legislation and produce legislation that truly recognizes the bipartisan agreement between Mayor Daley and Governor Ryan.
I support O'Hare expansion, and I support a third airport at Peotone. As we all know, air travel will double in the coming decade. O'Hare and Midway Airports are at capacity. We need to rebuild and modernize O'Hare, and we need to build the South Suburban Airport near Peotone.
Governor Ryan and Mayor Daley entered into a historic agreement last year which would provide for the reconfiguration and expansion of Chicago O'Hare and the development of the Chicago South Suburban Airport located near Peotone, Illinois. The gentleman from Illinois
(Mr. Lipinski) introduced legislation which would originally have codified this agreement into law, modernizing O'Hare and pushing development of a south suburban airport. I had originally hoped to cosponsor and support this legislation, if it truly reflected the integrity of the agreement between the Governor and the mayor.
However, I would note that that is not the bill that is before us today. It is also important to note that the Governor of Illinois does not support this bill in its current form. In fact, Mr. Speaker, the bill that is before us today is only a fragment of the original legislation and represents none of the compromise that was reached between the Governor and the mayor. Rather, the legislation that is proposed before us today is an attempt to force the Congress to take an unprecedented step in mandating that Chicago O'Hare be rebuilt, as the mayor demanded, while completely ignoring the Governor's side of the agreement, the Governor's side of the agreement that a south suburban airport should also be built. As such, the Governor of Illinois, as I noted earlier, does not support this bill in its current form and as it is currently written.
{time} 1630
We ask that language moving for the construction of a south suburban third airport be added to this legislation.
This legislation breaks the agreement of the mayor and the Governor, as I have noted here in my chart. There is nothing in this legislation that reflects the agreement to promote the development of a south suburban airport.
This legislation takes away Illinois State's rights, and it undercuts the authority of the State of Illinois to make its own decisions regarding air travel. The legislation completely ignores the needs of the south suburbs of Chicago, where 2.5 million Illinois residents live within 45 minutes of the proposed airport site.
Additionally, I would note that failure to develop Peotone will shortchange the entire Chicago region by forfeiting almost 250,000 new jobs.
Unfortunately, H.R. 3479 does not pay heed to the studies that since the 1980s have consistently shown that Chicago, our region, and the Nation will have aviation gridlock in the near future, and that the best solution is a south suburban third airport. The Governor and mayor recognized these studies when they reached their agreement this past year.
Nevertheless, the bill imposes a Federal solution on a State problem and does not have the full support of the entire delegation, nor the people of Illinois, who are most impacted. In fact, the four Members of the Illinois delegation most impacted in their own districts by H.R. 3479 stand in opposition today, the gentlemen from Illinois, Mr. Crane, Mr. Hyde, Mr. Jackson, and myself.
Mr. Speaker, I support Chicago O'Hare, and I believe that it needs to be expanded and modernized to be a safer airport with more capacity; but expanding O'Hare alone will not solve the capacity needs of the future. Even with the development of a south suburban airport, O'Hare could still expect a 40 percent increase in passenger load. Air travel is expected to double in the next 10 to 15 years.
Expanding O'Hare will take 12 to 15 years, and we cannot land an airplane while we are pouring concrete. The South Suburban Airport at Peotone could be expanding capacity and up and running in 4 to 5 years as a complement to O'Hare expansion. However, this legislation stifles any development of the South Suburban Airport and keeps Chicago aviation gridlocked for the next decade.
Aviation is a key part of our economy for Chicago and our Nation. We must expand our capacity to accommodate the growth in aviation by building a third airport in Chicago's south suburbs, as well as expanding O'Hare. H.R. 3479 fails this goal and should be defeated.
I urge my colleagues to join me by voting ``no'' and asking the Committee on Transportation and Infrastructure to produce a bill that reflects the historic agreement between Mayor Daley and Governor Ryan, working towards building a south suburban third airport as well as expansion of O'Hare.
Again, the legislation before us today breaks the bipartisan agreement between Governor Ryan and Mayor Daley. I ask for a ``no'' vote.
Mr. LIPINSKI. Mr. Speaker, I yield 6 minutes to the gentleman from Minnesota (Mr. Oberstar), the ranking member of the Committee on Transportation and Infrastructure, and the former chairman of the Subcommittee on Aviation.
Mr. OBERSTAR. Mr. Speaker, I thank the gentleman for yielding such an abundance of time to me. I especially want to compliment the gentleman from Illinois (Mr. Lipinski) for the hours and weeks of time he has personally dedicated to mediating between the City of Chicago and the State of Illinois, and working to bring us the legislation that is before the House today.
Mr. Speaker, when President John F. Kennedy dedicated O'Hare Airport in 1963, he said, ``There is no other airport in the world that serves so many people and so many airplanes. This is an extraordinary airport. It could be classed as one of the wonders of the world.''
Mr. Speaker, the pulse of national and international air travel remains dependent on O'Hare today, as it did when opened in 1963; but few would suggest that today it is that wonder of the world. It is simply failing to meet the capacity demands put on this airport by the extraordinary increase in air travel throughout world, as well as throughout our own Nation.
Delays at O'Hare ricochet around the world. They reverberate as far away as Frankfurt, Germany; London's Heathrow Airport; Tokyo's Narita Airport; and elsewhere around the United States. A weather delay in Chicago means business travelers inbound from the European continent or the Pacific Rim are delayed, either at their point of origin or en route.
This airport is truly an extraordinary facility in the world of aviation. It is our Nation's premier airport. It is the crown jewel of aviation in the United States, but it cannot continue to serve that role in its current configuration.
When I met with the mayor and the staff, the professional staff of the O'Hare International Airport operation over 1\1/2\ years ago to discuss their plans for expansion, I was greatly impressed with the proposals for reconfiguring this airport that would result in a 4,300-
foot separation between two groups of parallel runways, the addition of an entirely new runway, and for operational improvements that would reduce reductions in operations by 95 percent in bad weather, and overall reduce delays by almost 80 percent.
That is an extraordinary improvement in aviation service and will result in untold benefits, benefits we can only estimate today, but that will run into the billions of dollars over the years and more than justify the cost of the investments needed to make these improvements.
There has been a good deal of discussion throughout the proposal when it was first surfaced over a year ago about whose responsibility it is to build this airport and what should be the role of the State. There has been, let us be candid about it, a great deal of conflict between the city and the State, not only on O'Hare Airport, but on, as Mayor Daley testified at our committee hearings, on such matters as transit improvements, on highway improvements, where the State repeatedly has vetoed City of Chicago plans to expand, improve, and deal with its infrastructure needs.
The gentleman from Illinois, working with the city and the State, attempted to resolve the complexities through the channeling process, whereby the city must channel its request for FAA approval through the State of Illinois; but over time, contrary to best hopes and expectations, that proved to be very difficult.
The city and the State came up with a plan that initially I found to be unacceptable because it would be violative of national aviation policy. Over months of negotiations, the two parties, the State and the city, have come to an agreement. The gentleman from Illinois (Mr. Lipinski), our ranking member on the Subcommittee on Aviation, served as a midwife and attending physician, caregiver and nurturer of all good things. I think it has really come to fruition here.
The National Aviation Capacity Expansion Act, H.R. 3479, will facilitate projects to enhance capacity in the Chicago area, including major expansion of Chicago O'Hare Airport, our Nation's second-busiest airport and the third-most delayed. As I noted previously, the City of Chicago, which runs the airport, has proposed development that it estimates will improve O'Hare's operations in optimal conditions by 79 percent and in less-than-optimal conditions by 95 percent, while making quantum leaps in O'Hare annual capacity. The proposal, which involves one new runway and reconfiguration of the seven existing runways, is predicted to more than double O'Hare's annual enplanements, from 31 million to 76 million, and to allow the airport to handle 1.6 million annual operations, compared with the current level of less than 1 million.
Under this legislation, the State of Illinois will be preempted from using unique provisions of state law to prevent the Federal Aviation Administration (FAA) from even considering the expansion and reconfiguration of O'Hare airport. The preemption provision is narrowly crafted to preempt the unique provisions of the Illinois Aeronautics Act, which for years have been used to delay any consideration of expanding O'Hare.
When H.R. 3479 was introduced, I was extremely concerned with the provisions that crafted preferences or exemptions for the O'Hare and Peotone projects from: (1) the federal and state National Environmental Policy Act (NEPA) processes, (2) the Clean Air Act, (3) and the need to compete with other airports, on a merit basis, for the limited Airport Improvement Program (AIP) funding available.
The Transportation and Infrastructure Committee, however, accepted an amendment offered by Mr. Lipinski that makes it clear that O'Hare-
related projects will not receive any preference in seeking funds from the Airport Improvement Program. The amendment only allows the City of Chicago to submit to the FAA a request for AIP funds for the planning and construction of O'Hare airport, without the prior approval of the State of Illinois. FAA will use its best professional judgment to determine whether the projects should be funded under the criteria used to evaluate applications for AIP grants.
The bill makes it clear that any application submitted by the City of Chicago for the expansion of O'Hare must be evaluated under all applicable federal laws and regulations, including the federal NEPA process. In addition, it requires that proposals for the construction or expansion of Peotone, Gary/Chicago, and Greater Rockford airports should be evaluated on the same basis as any other airport project.
The bill also addresses my main concern with the Clean Air Act provision in the introduced bill. I believed that under the introduced bill, the people of Illinois would lose the right to decide which emissions should be curtailed to meet the Clean Air Act's requirements. The reported bill requires the State to follow its usual and customary practices for accounting for, and regulating emissions associated with, airport activities. The bill prevents the State from deviating from customary practices to interfere with construction of a runway at O'Hare airport or the south suburban airport. The FAA can request a review by the federal Environmental Protection Agency to ensure that the State has followed its customary practices. The bill also prohibits the FAA from approving the O'Hare runway design plan unless FAA determines that the construction and the operations at the airport will include best management practices to mitigate emissions.
In sum, the National Aviation Capacity Expansion Act of 2002 ensures that the uniqure provisions of Illinois law will not stand in the way of the O'Hare redesign project, while at the same time, O'Hare will not have unfair advantage in competing for scare AIP funds; and environmental laws will not be short-circuited.
Mr. LIPINSKI. Mr. Speaker, will the gentleman yield?
Mr. OBERSTAR. I yield to the gentleman from Illinois.
Mr. LIPINSKI. Mr. Speaker, I would just like to speak on one point. It has been mentioned here on the floor that the Governor is not in favor of this legislation. I spoke to the Governor Friday afternoon, and he is still in favor of this legislation.
Now, if he changed his mind over the weekend, I cannot attest to that; but as of last Friday, he was in favor of this particular piece of legislation. I have read nothing in the newspaper, saw nothing on television, or heard nothing on the radio that he has changed his position.
Mr. OBERSTAR. I thank the gentleman for that addition. That has been our understanding on our side on a bipartisan basis, that the Governor is in support.
Mr. Speaker, it is important to point out that cities were the first to champion airports; States came along much later.
The SPEAKER pro tempore (Mr. Ryan of Wisconsin). The time of the gentleman from Illinois (Mr. Lipinski) has expired.
Mr. JACKSON of Illinois. Mr. Speaker, I ask unanimous consent that the gentleman from Illinois may have 2 additional minutes for himself and 2 minutes to our side as well.
The SPEAKER pro tempore. Is the gentleman from Illinois (Mr. Jackson) asking for equal distribution of minutes for each side?
Mr. JACKSON of Illinois. Yes, 2 minutes for each side.
Mr. LIPINSKI. Mr. Speaker, I would like to make that 5 minutes for each side.
The SPEAKER pro tempore. Without objection, each side is distributed an additional 5 minutes.
There was no objection.
Mr. LIPINSKI. Mr. Speaker, the gentleman from Illinois (Mr. Kirk) will have an additional 5 minutes?
The SPEAKER pro tempore. The gentleman from Illinois (Mr. Kirk) will have an additional 5 minutes, and the gentleman from Illinois (Mr. Jackson) will have an additional 5 minutes.
Mr. KIRK. Mr. Speaker, I believe I have 8 minutes now available to me?
The SPEAKER pro tempore. That is correct.
Mr. KIRK. Mr. Speaker, I yield 5 minutes to the gentleman from Illinois (Mr. Lipinski) and ask unanimous consent that he control that time.
The SPEAKER pro tempore. Is there objection to the request of the gentleman from Illinois?
There was no objection.
Mr. LIPINSKI. Mr. Speaker, I yield 2 minutes to the gentleman from Minnesota (Mr. Oberstar).
Mr. OBERSTAR. Mr. Speaker, I thank the gentleman from Illinois (Mr. Jackson) for his request and the gentleman from Illinois (Mr. Lipinski) for yielding that additional time to me.
Mr. Speaker, in the early years of aviation, with cities that first built airports, only later did States come. As late as 1958, only seven States provided financial assistance and support for airport construction. It was in the 1940s, long before the State of Illinois ever got into the business of supporting airports, that the Chicago City Council looked into the crystal ball and saw that the future was aviation and had the foresight to buy orchard fields and an additional 7,000 acres to build O'Hare.
On the matter of constitutionality, I just want to point out, and I was concerned about this, we inquired with the John Paul Stephens professor of law at Northwestern University, Professor Thomas Merrill, to get his opinion on the constitutionality. His view is that ``the Illinois Aeronautics Act was not protected by the Tenth Amendment. The Illinois Aeronautics Act is unique. Regulation aviation capacity cannot be deemed a core or traditional State function that might be protected by the Tenth Amendment. This legislation does not require the State of Illinois to proactively regulate its citizens, it merely prohibits the State of Illinois from interfering with the city of Chicago's ability to expand capacity at O'Hare.''
Mr. Speaker, I think that clearly this legislation is within the authority of the Congress. It is in the public interest. It is necessary to resolve a deadlock between the State of Illinois and the City of Chicago. It was requested by the State of Illinois. It was sought by the City of Chicago, which has the primary responsibility for airport construction, and has nurtured O'Hare Airport into the world's premier facility that it is and represents today.
We are talking here not just about this airport, but we are talking about service to the entire Nation, facilitating air service to smaller communities as well as large communities, and service to the world.
Mr. JACKSON of Illinois. Mr. Speaker, I am proud to yield 2\1/2\ minutes to the distinguished gentleman from Illinois (Mr. Crane).
(Mr. CRANE asked and was given permission to revise and extend his remarks.)
Mr. CRANE. Mr. Speaker, I rise today in strong opposition to the so-
called National Aviation Capacity Expansion Act of 2002. If enacted into law, this measure would not accomplish the goal that most Americans have in mind, namely, a reduction in air traffic congestion as quickly and cheaply as it can be accomplished. To the contrary, it would mean years of waiting for relief, expenditures far in excess of those associated with other more effective alternatives, and the establishment of a troublesome precedent that could come back to haunt other airports around the Nation in the future.
This legislation mandates the addition of one runway at Chicago's O'Hare Airport and the reconfiguration of O'Hare's existing runways, State law, local objections, noise problems, pollution threats, cost considerations, condemnation proceedings, safety concerns, ongoing litigation, and the fate of two cemeteries notwithstanding.
Worse yet, the measure, the total cost of which is likely to far exceed the $6.6 billion price tag, in fact, it has been estimated to be more in the neighborhood of 12 billion to $15 billion that has been associated with it, conveniently overlooks the fact that there are at least three other ways, such as making greater use of the greater Rockford Airport, which has a runway of over 10,000 feet, the second largest runway in the State, and it can relieve O'Hare's air traffic congestion problems almost immediately.
Not only that, but all of these alternatives can be implemented less expensively and/or more quickly than the ill-conceived plan to expand O'Hare.
{time} 1645
Furthermore, this legislation poses a threat to people who live near many other airports in this country because it will set a precedent for Federal government preemption of State and/or local laws governing airport planning and development.
Mr. Speaker, I urge my colleagues to vote against H.R. 3479. It is a prescription for mischief that bodes ill, not just for the residents of Chicago's northwest suburbs, but for millions of other Americans as well.
Mr. JACKSON of Illinois. Mr. Speaker, how much time do I have remaining?
The SPEAKER pro tempore (Mr. Ryan of Wisconsin). The gentleman from Illinois (Mr. Jackson) has 7 minutes remaining.
Mr. JACKSON of Illinois. Mr. Speaker, I yield myself 2\1/2\ minutes.
Mr. Speaker, we have heard some arguments about the constitutionality of this act, this unprecedented act of Congress. But in New York v. The United States, the Supreme Court was really clear. The Framers, they said, explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States. We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power to directly compel the States to prohibit those acts, New York v. The United States.
Printz v. The United States: It is uncontestable that the Constitution established a system of ``dual sovereignty.'' And Federalist No. 39: Although the States surrendered many of their powers to the new Federal Government, they retained ``a residuary and inviolable sovereignty,'' Federalist No. 39.
Mr. Speaker, that brings us to, from my perspective, the Printz decision. You heard some of the economic arguments about 47 States going through O'Hare Airport and the implications of that. This is about process and it is about doing it right. In Printz, the court went on to emphasize that this constitutional structural barrier to the Congress intruding on a State's sovereignty could not be avoided by claiming, A, that the Congressional authority was pursuant to the Commerce Power. All of the economic arguments are irrelevant, according to Printz v. The United States; and, B, that the Federal law preempted the State law under the supremacy clause. Even the supremacy clause arguments of Congress are not unavailable. And last I checked, the majority on the current Supreme Court are the same majority that decided Printz. And unless they are willing to overturn Printz, this piece of legislation before us, Mr. Speaker, is unconstitutional, which raises the next point.
Because this is likely heading to Federal court, we are not going to solve the national aviation capacity problem any time soon, which is why we need a faster, cheaper, safer solution of expanding aviation capacity for our Nation's aviation system. That can be accomplished, not with a 13 to $15 billion, 20-year project at O'Hare Airport; it is accomplishable by building a third airport in Peotone, Illinois, which my colleagues who have risen today aptly support.
Mr. Speaker, I reserve the balance of my time.
Mr. KIRK. Mr. Speaker, the majority will close.
Mr. JACKSON of Illinois. Mr. Speaker, I yield such time as he may consume to the gentleman from Illinois (Mr. Hyde), the distinguished chairman of the Committee on International Relations.
Mr. LIPINSKI. Mr. Speaker, how much time remains?
The SPEAKER pro tempore. The gentleman from Illinois (Mr. Lipinski) has 4 minutes remaining, and the gentleman from Illinois (Mr. Kirk) has 3 minutes remaining. The gentleman from Illinois (Mr. Jackson) has 5 minutes remaining.
Mr. HYDE. Mr. Speaker, I want to say that my disdain for this legislation is in reverse ratio to my admiration for the chief sponsors, the gentlemen from Illinois (Mr. Lipinski), (Mr. Kirk), who are splendid legislators. They are just wrong on this bill. So I want to make that clear.
First of all, I just want to appeal to your common sense. I know this is a big deal. You want to add additional flights, nearly doubling already the busiest airport in the world. That is a big deal. We are talking about a lot of money. And when you talk about a lot of money, people's ears perk up. But we are also talking about so much space in the sky. You can keep condemning people's homes and their cemeteries and get bigger and bigger, and I do not understand why a Republican would put an imprimatur on transferring local authority; and this should be a local decision. When I say local, I do not mean the Governor. I mean the legislature, the people's body. That is what the Illinois Aeronautics Act says. We shred that and throw it away?
The Illinois Aeronautics Act gives the legislature or expresses the will of the legislature on this issue; and that requires permission from the legislature to expand this airport. But you are just riding roughshod over that, saying if we cannot get that, we will go to Congress.
Mr. LIPINSKI. Mr. Speaker, will the gentleman yield?
Mr. HYDE. I yield to the gentleman from Illinois (Mr. Lipinski).
Mr. LIPINSKI. Mr. Speaker, the gentleman refers to the State legislature in the Illinois Aeronautics Act. It is my understanding reading it and talking to other people about it that the Illinois legislature is not involved in the process at the present time. It is exclusively the Governor's office with its arbitrary veto power and then the Department of Transportation which he controls on the channeling acts. The legislature is not involved in the process at the present time.
Mr. JACKSON of Illinois. Mr. Speaker, will the gentleman yield?
Mr. HYDE. I yield to the gentleman from Illinois (Mr. Jackson).
Mr. JACKSON of Illinois. Mr. Speaker, is it the gentleman's contention then that a governor who is essentially not running for reelection is under an obligation to enter into an agreement and, therefore, obligate this Congress and future governors to a piece of legislation that future governors cannot alter? Is that the gentleman's position?
Mr. LIPINSKI. Mr. Speaker, I am saying my position is simply expressing to the gentleman from Illinois (Mr. Hyde) what my understanding is of the Aeronautics Act in the State of Illinois. The legislature is not involved.
Mr. HYDE. Reclaiming my time, I would suggest if we are going to prolong this seminar on the law, that we do it on the gentleman's time.
Mr. Speaker, I simply want to point out that there is only so much space in the sky. And when you already have the busiest airport, and busiest does not mean people walking into Starbucks. It means planes coming in and taking off.
I sit in my living room in the evening and look out and I see them stretched all the way up to Wisconsin, plane, plane, plane, waiting to come in.
Of course, there are delays. There will always be delays at O'Hare because we have terrible weather in the winter and the airlines schedule too many flights. That is what happens and that needs to be corrected. But to double the size of O'Hare, the flights in and out of O'Hare, is really dangerous. It is dangerous.
We have pollution, noise pollution. We have air pollution. And now we are going to have a safety situation which is really dangerous. Now, that does not solve the problem of capacity, because we need it. We are up to the hilt at O'Hare. Do we expand? What is the most efficient, cheapest, effective way to meet the need for capacity?
Peotone. Build another airport. New York has Newark, Idlewild, John F. Kennedy. That shows how old I am, Idlewild, LaGuardia, of course, which we all go in and out of regularly. But Chicago has Midway, which the gentleman has a proprietary interest in, and O'Hare. So we need another airport, one that can be out in the green where it can expand, where it has a buffer so that the homes that are as adjacent to it as possible can survive.
This is an answer to a real problem. Why do not we take that answer? Why do we not build Peotone? Because the Mayor would not have much to do with it. I have always said he ought to. I would name it after the Mayor if he would let it get built. But that is the problem; and I hope this bill is defeated.
Mr. LIPINSKI. Mr. Speaker, how much time remains?
The SPEAKER pro tempore. The gentleman from Illinois (Mr. Lipinski) has 4 minutes remaining. The gentleman from Illinois (Mr. Jackson) has no time remaining. The gentleman from Illinois (Mr. Kirk) has 3 minutes remaining.
Mr. LIPINSKI. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, we have heard a lot of charges made here on the floor, one of which is that this bill will prevent Peotone from ever being built. There is nothing in this legislation that prevents Peotone from being built if there is a need for Peotone.
Some people wanted in this legislation, for the United States House of Representatives, the U.S. Senate and the President of the United States to say we have to build Peotone. We cannot do that. That is not right. If we did that, we would have every airport that had a conflict in the country coming over here to see us trying to legislate their problem out of existence. We do not do that for O'Hare Airport in this legislation either.
Expanding and modernizing O'Hare Airport does not become a Federal law until the Federal Aviation Administration has signed off on it. We also have an airport in Rockford. We have an airport in Gary. Airports that have already been established. In all deference to the gentlemen from Illinois (Mr. Jackson), (Mr. Weller), Peotone at the present time is a corn field. They have been asking commercial air carriers for years to agree to come down to Peotone and operate out of Peotone. As of this moment they still do not have one single air carrier who has been willing to say they would go down and operate out of Peotone.
They talk about relocating individuals because of O'Hare's expansion. If you were to build Peotone, you would relocate almost three times as many individuals as you will by expanding and modernizing O'Hare Airport.
The only way to solve the aviation gridlock problem in this country is by modernizing and expanding O'Hare Airport. If the capacity needs grow that much greater in the future, put some of that commercial aviation into Gary, put some of it into Rockford, build Peotone. Nothing in this legislation prevents Peotone from being built.
This is the one piece of legislation that this Congress will act upon this year that can truly expand aviation capacity in this country and for the rest of the world.
Mr. Speaker, I yield back the balance of my time.
Mr. KIRK. Mr. Speaker, I yield 3 minutes to the gentleman from Florida (Mr. Mica), the distinguished chairman of the Subcommittee on Aviation, my chairman, a supporter of this bill.
Mr. MICA. Mr. Speaker, I thank the gentleman for yielding me time and I thank the gentleman for handling this legislation today.
Having just arrived by air, it sounds like a simple thing, I just arrived by air, but remember back to September 11, September 12, September 13, and we see the impact that aviation has on every American. We see how dependent our economy has become on aviation.
Mr. Speaker, I chair the subcommittee and I try to be fair, and the worst thing to do is get in the middle of a food fight in a delegation or delegations of Members affected by legislative proposal.
I tried to be fair in this proposal. I have the greatest respect for the gentleman from Illinois (Mr. Hyde). No one is held in higher esteem than the gentleman from Illinois (Mr. Hyde). I have great respect for the gentleman from Illinois (Mr. Manzullo). I have tremendous respect for the gentleman from Illinois (Mr. Weller) and have worked with him on the Peotone question. As chair of the subcommittee, however, I have to look not only at their interests but the interests of the Nation and the interests of the American people. And this is a difficult battle.
The gentleman from Illinois (Mr. Hyde) does not want any more planes over the residents he represents and feels that this airport is already at capacity. The gentleman from Illinois (Mr. Weller) wants additional traffic. The gentleman from Illinois (Mr. Manzullo) wants additional traffic for an existing facility. But we have to move forward. I believe that this is as good a compromise as we can get. It is based on codifying an agreement.
Now, mayors of Chicago come and mayors of Chicago will go. Governors of Illinois will come and go.
{time} 1700
One of the problems we have in trying to make these improvements that are so key to safety and capacity is that the players keep changing. This does codify an agreement, allows us to go forward in our national interest.
Our national interest is, first, the safety of people who fly in and out of O'Hare. That airport has been congested. There has not been a single runway added since 1971, and something has to give in the modernization of those runways and capacity.
If O'Hare were by itself, we could leave it by itself; but when O'Hare closes down, the Nation's air system also closes down. So we must do something to deal with that.
Do we need improvements at O'Hare? Yes, we do. Do we need additional capacity at Peotone? I believe we will. Do we need to better utilize Rockford and Gary? Yes, and I think through our policy we can bring some of those changes about.
So I support the legislation, and I ask my Members to agree with this compromise.
Mr. KIRK. Mr. Speaker, I yield myself such time as I may consume.
This bill has the support of the gentleman from Alaska (Mr. Young), chairman of the Committee on Transportation and Infrastructure; the gentleman from Minnesota (Mr. Oberstar), the ranking minority member; the gentleman from Florida (Mr. Mica), the chairman of the Subcommittee on Aviation; the gentleman from Illinois (Mr. Lipinski), the ranking minority member; Illinois' Governor, a Republican; Chicago's mayor, a Democrat; the chamber of commerce and the AFL-CIO. It has no objection from the Sierra Club and was scheduled on the floor by Speaker Hastert and Minority Leader Gephardt.
It eliminates delays, not just at O'Hare but over 100 airports connecting through O'Hare. It is the right thing to do. I urge adoption of the legislation.
Mr. Speaker, I am inserting for the Record an exchange of letters between the gentleman from Alaska (Mr. Young) and the gentleman from New York (Mr. Boehlert) regarding H.R. 3479.
U.S. House of Representatives,
Committee on Science,
Washington, DC., July 12, 2002.Hon. Don Young,Chairman, Committee on Transportation and Infrastructure,
House of Representatives, Washington, DC.
Dear Mr. Chairman. The Committee on Transportation and Infrastructure has had under consideration H.R. 3479 the National Aviation Capacity Expansion Act. In that bill there is a provision which falls under the jurisdiction of the Committee on Science. Specifically, that provision is a sense of Congress amendment which would ask that the Federal Aviation Administration expend monies for research and development for noise mitigation programs.
By waiving consideration of H.R. 3479 the Committee on Science does not waive any of its jurisdictional rights and prerogatives.
I ask that you would support our request for conferees on H.R. 3479 or similar legislation if a conference should be convened with the Senate. I also ask that our exchange of letters be included in your committee's report and also in the Congressional Record.
I look forward to working with you on this and other important pieces of legislation.
Sincerely,
Sherwood Boehlert,
Chairman.
U.S. House of Representatives,
Committee on Transportation and Infrastructure,
Washington, DC, July 12, 2002.Hon. Sherwood L. Boehlert,Chairman, Committee on Science,Washington, DC.
Dear Mr. Chairman. Thank you for your letter of July 12, 2002, regarding H.R. 3479, the National Aviation Capacity Expansion Act, and for your willingness to waive consideration of provisions in the bill that fall within your Committee's jurisdiction under House rules.
I agree that your waiving consideration of relevant provisions of H.R. 3479 does not waive your Committee's jurisdiction over the bill. I also acknowledge your right to seek conferees on any provisions that are under your Committee's jurisdiction during any House-Senate conference on H.R. 3479 or similar legislation, and will support your request for conferees on such provisions.
Your letter and this response will be included in the Congressional Record during consideration on the House Floor.
Thank you for your cooperation in moving this important legislation.
Sincerely,
Don Young
Chairman.
Ms. WATERS. Mr. Speaker, I rise to express my opposition to H.R. 3479, the National Aviation Capacity Expansion Act, which would force airport expansion on a community in the Chicago region that is already overburdened by airport operations.
The people of my congressional district in Southern California are overburdened by the noise, pollution and traffic congestion generated by Los Angeles International Airport (LAX). Airport expansion would only exacerbate these problems. That is why I am introducing the Careful Airport Planning for Southern California Act (the CAP Act).
The CAP Act would cap LAX air traffic at its current capacity of 78 million passengers per year. The CAP Act would encourage airport development in Southern California communities that are eager for the benefits of a local airport. The CAP Act would ensure that the benefits and burdens of airport development are fairly distributed throughout the Southern California region.
I urge my colleagues to support the CAP Act, to oppose the National Aviation Capacity Expansion Act and oppose the expansion of Chicago O'Hare and LAX.
Mr. RUSH. Mr. Speaker. I rise in support of H.R. 3479, the National Aviation Capacity Expansion Act. This legislation will codify a historic agreement reached between the Republican Governor of Illinois and the Mayor of Chicago to expand and modernize O'Hare International airport. As you know, O'Hare airport is one of the busiest airports in this nation and the hub to hundreds of destinations across the globe. Therefore, making it the center of our national transportation system.
Unfortunately, O'Hare is the third leading airport for congestion and delays. According to the FAA, O'Hare's systematic flight delays and cancellations has a crippling affect on our nation's aviation system.
Many of us, and the flying public, have spent countless hours sitting on a runway or in an airport waiting for a flight to taxi or depart. In 2000, it was estimated that O'Hare airport had 545 delays, or 63.3 delays per 1,000 operations. The principal reason attributed for these delays rests solely on the fact that O'Hare airport has antiquated runways. Hence, expanding O'Hare's runways is essential in remedying our nation's aviation crisis. It is estimated that modernizing O'Hare airport will reduce air traffic delays by 79 percent and weather delays by 95 percent.
I am glad to see that this bill includes a provision to develop a third Airport in Illinois. This airport, known as the Peotone Airport, will provide our nation's air transportation system with the additional relief required to reduce airport congestion while creating thousands of construction and permanent jobs for the South Suburban region of the state.
We need solutions to aviation delays and congestion. Let's end this 20 year old debate. Expanding O'Hare and constructing a third airport is the right thing to do. I urge my colleagues on both sides of the aisle to support this critical legislation.
Mr. BLAGOJEVICH. Mr. Speaker, I am honored to join my colleague from Illinois, Mr. Lipinski, here today in supporting legislation that is very important not only to my constituents in Illinois, but to the entire nation. I would also like to thank the distinguished Speaker, Mr. Hastert, for allowing this bill to come before us today.
I have been proud to serve as an original cosponsor of the National Aviation Capacity Expansion Act here in the House, and to have worked in Illinois with a broad coalition of labor, business and civic leaders to promote the effort in Illinois. Today is the result of the unified effort of diverse groups of Illinoisans who have joined to fight for a proposal that will strengthen our state's economic and fiscal health. The bill would create 195,000 new jobs, and would bring an estimated
$19 billion to the State of Illinois.
This bill calls for comprehensive expansion of O'Hare. H.R. 3749 calls for each of the essential elements that transportation industry experts and local officials agree must be included in any effective O'Hare modernization proposal: foremost among them, the addition of a southern runway, the reconfiguration of existing runways, and the introduction of western access to the airport.
I also commend Congress' commitment to addressing the crucial issue of the nation's aviation capacity. The National Aviation Capacity Expansion Act would not only benefit my constituents and the State of Illinois, it would have an affect on the entire nation. O'Hare is not only the world's busiest airport, but it is a critical national hub through which thousands of flights connect everyday. Congestion in Chicago has a ripple effect throughout the United States and abroad, grounding and delaying flights miles away, some that are not even bound for O'Hare.
In addition to inconveniencing travelers, these delays and congestion cripple the ability of businesses to function effectively. The gridlock at O'Hare has been responsible for everything from missed business meetings to delayed shipments of goods. Mr. Lipinski's bill would reduce delays by 79 percent, and with it save a projected $380 million that is lost due to the delays.
O'Hare's airfield has not been improved since 1971. Repeated initiatives to modernize it fell prey to local political disputes that led to delays in the project in recent years. Last year, however, the Mayor of the City of Chicago and the Governor of Illinois reached an historic agreement to modernize O'Hare and take an inclusive approach to meet the aviation needs of Chicago and the nation. On behalf of Illinois, and with the support of elected officials and businesses, labor and community groups across the nation, they are working with Congress to help meet the long-term transportation needs of the nation.
Such State and local leadership demonstrates that Illinois takes its responsibility to the nation very seriously. Nearly 10,000 organizations and individuals in all 50 states have voiced their support for expanding Chicago's aviation capacity. H.R. 3479 has been endorsed by a wide range of national groups. The bill has received the support of the U.S. Chamber of Commerce, the AFL-CIO, the National Air Traffic Controllers Association, the Airline Pilots Association, the Aircraft Owners and Pilots Association and the National Air Transportation Association--to name just a few.
This broad base of support speaks to the legislation's vital impact on the efficiency and reliability of our aviation infrastructure, as well as to the unique opportunity for enhanced business activity and increased job creation that would accompany comprehensive O'Hare expansion. As with the delays at the airport, a failure to keep this economic engine vibrant will surely affect businesses and working women and men in many parts of the nation. It is important to note that O'Hare already generates some $35 billion annually in economic activity and produces more than 400,000 jobs in northeastern Illinois and northwest Indiana. This includes tens of thousands of people whose jobs are tied directly to the travel and tourism industry and countless others--employed in virtually every sector of the economy--whose wages are earned thanks to the economic engine that is O'Hare.
I support H.R. 3479 because I am committed to ensuring that the economic security of those workers--and that of nearly 200,000 new workers--will expand and grow.
The time to act on O'Hare's expansion is today. H.R. 3479 represents an historic opportunity that we must seize. By doing so, we will guarantee a safe, reliable air transportation system for our constituents. We will also demonstrate our commitment to a healthy economy and our ability to take decisive action in the face of a national need.
I respectfully urge you to support this vital legislation.
Mr. YOUNG of Alaska. Mr. Speaker, I rise in support of H.R. 3479, the National Aviation Capacity Expansion Act.
This Bill is long overdue.
Chicago O'Hare has been in need of a new runway for the last 20 years.
It's annually one of the worst airports in terms of cancellations and delays.
What's worse, problems at O'Hare ripple through our entire system, creating tie-ups and delays at dozens of other airports.
This bill furthers the agreement reached by local and State leaders to allow the city of Chicago to go ahead with a proposed capacity expansion project from O'Hare.
It likewise allows the State to go forward with its proposal for peotone and guarantees that Meig's Field will remain open.
I support H.R. 3479 to address these vital national transportation issues and urge everyone to support this bill.
Mr. DAVIS of Illinois. Mr. Speaker, I would like to commend Mr. Lipinski for his leadership concerning transportation issues in Illinois and especially the issue of O'Hare Expansion and today I stand in firm support of H.R. 3479.
Chicago has a vast and growing transportation industry. Over the years Chicago's O'Hare International Airport has continued its growth, in traffic and demand. Presently, O'Hare ranks as the Nation's first or second busiest airport with nearly 34,000,000 annual passengers traveling both domestically and internationally.
Expanding O'Hare offers an array of benefits: from employment to economic growth. As Chicago continues to grow, O'Hare continues to experience the backlog of delays. According to the Airport Capacity Benchmark Report in 2001, O'Hare was the third most delayed airport.
Sitting in the heart of the Mid West, these delays continue to burden connecting airports creating a snowball affect and frustrated passengers. By the addition of runways, and the expansion of O'Hare delay times will diminish and air travel at Chicago's bustling O'Hare will undoubtedly improve for the consumer and the region.
I encourage my colleagues to support H.R. 3479.
Mr. KIRK. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore (Mr. Ryan of Wisconsin). The question is on the motion offered by the gentleman from Illinois (Mr. Kirk) that the House suspend the rules and pass the bill, H.R. 3479, as amended.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds of those present have voted in the affirmative.
Mr. JACKSON of Illinois. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the Chair's prior announcement, further proceedings on this motion will be postponed.
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