APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
M. COHEN, Judge, presiding.
MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:
The four plaintiff and intervenor municipalities appeal from the dismissal of their suit to enjoin the City of Chicago from expanding its airport facilities at O'Hare in such a manner as to intensify the existing noise and air pollution caused by and arising out of its operation of said airport.
Although many issues are raised and argued at length (such as whether the complaint states a cause of action, whether a court of equity has jurisdiction to enjoin a city's operation of an airport where such operation is legal and not negligent, whether the municipalities must first exhaust their administrative remedies and whether the action is barred by the failure of the plaintiffs to give the statutory notice under the Local Government Tort Immunity Act), in our considered opinion the controlling issue here is whether the United States, under the Supremacy and Commerce clauses of the Constitution, has, through the Federal Aviation Act, as now supplemented by the Noise Control Act of 1972 and regulations issued thereunder, so occupied the regulation of aircraft noise and air pollution as to preempt any state or local action in that field.
We answer that inquiry in the affirmative and therefore affirm.
Although there were in the trial court other counts (involving home owners and various airline companies), those matters are not joined in this appeal, which involves only Count I.
The said count alleges, in substance, that the plaintiff municipalities are located contiguously to and within the environs of the O'Hare International Airport, which is physically located in the counties of Cook and Du Page and is owned and operated by the defendant City of Chicago; that the City has developed the said airport, through the construction of runways, taxiways, ramps and service facilities for both passenger and cargo, to the extent that it is the busiest airport in the world; that the air transport carriers using said facilities operate many jet aircraft powered by liquid fueled engines which produce and emit intensive noise and air pollution over and upon said municipalities and their constituents; that said noise and air pollution are of such an intensity as to be harmful, dangerous and damaging to the physical and mental health of said constituents; that each of said municipalities has enacted resolutions declaring the said conditions, created in and over and upon their respective territorial limits, a public nuisance; and that the City has recently undertaken to expand said airport by adding to the number and length of its runways and supporting facilities, which will intensify and further increase said deleterious effects on the said constituents.
The plaintiffs prayed that the City be enjoined "from expanding its facilities at O'Hare in such a manner as to provide facilities for additional usage by noise and air-polluting aircraft and for such other relief as this court in equity deems proper." This general prayer was expanded during the hearings by the plaintiffs' suggestion that the court's decree include the following injunction:
"1. The said City shall not after the date of this Injunction offer by sale, lease or otherwise, any facilities of any nature at O'Hare International Airport to or for the use of any aircraft carrier, for passengers or for cargo, nor to any charter or private aircraft owner or operator, which facilities shall be used by aircraft which produce noise in excess of 82 dba (or such other standard deemed reasonable by the Court and gleaned from expert evidence submitted by the plaintiffs or others.)
2. Said airport operator shall not permit any aircraft which produces noise in excess of 82 dba (or such other standard deemed reasonable by the Court and gleaned from evidence submitted by the plaintiffs or others) to use its facilities at O'Hare unless such aircraft was in use by the owner thereof prior to the date of this injunction. This prohibition shall not apply in cases of emergency or those effecting the national defense."
The City moved to dismiss on various grounds and the court granted said motion and dismissed all complaints. The only appellants are the four municipalities and their appeal, as we have noted, relates only to the dismissal of Count I above abstracted.
As above indicated, despite language relating to the expansion of runways and supporting facilities, the real thrust of the plaintiffs' complaint is to prohibit (by a "Tinker to Evers to Chance" combination of a court decree upon the City to control the airlines) aircraft from producing noise or emitting fumes (while in flight over their territorial boundaries) in excess of certain limits to be fixed by the Illinois Chancery Court.
The United States Supreme Court has recently (May 14, 1973), in City of Burbank v. Lockheed Air Terminal, Inc., ___ U.S. ___, 36 L.Ed.2d 547, 93 S.Ct. 1854, passed on the general problem here presented.
There the city council of Burbank adopted an ordinance which made it unlawful for a so-called pure jet aircraft to take off from the Hollywood Burbank Airport between 11 P.M. of one day and 7 A.M. the next day and making it unlawful for the operator of that airport to allow any such aircraft to take off from that airport during such periods. The said operator and Pacific Southwest Airlines (which had such a flight at 11:30 P.M.) brought suit to enjoin the enforcement of said ordinance and the District Court did so, finding the ordinance unconstitutional on both Supremacy Clause and Commerce Clause grounds. On appeal, the United States Supreme Court, in a five to four opinion, affirmed, and speaking through Mr. Justice Douglas, at 1856, 1857, 1859, 1860, 1862 and 1863 (omitting footnotes), said:
"The Federal Aviation Act of 1958, 72 Stat. 737, 49 U.S.C. § 1301 et seq., as amended by the Noise Control Act of 1972, 86 Stat. 1234, and the regulations under it, 14 C.F.R. Pts. 71-77, ...