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Suburban O'Hare Commission v. Dole

March 13, 1986

SUBURBAN O'HARE COMMISSION, ET AL., PLAINTIFF-APPELLANT,
v.
ELIZABETH HANFORD DOLE, SECRETARY OF THE DEPARTMENT OF TRANSPORTATION, ET AL., DEFENDANT-APPELLEE



Petition for Review of a Decision of the Federal Aviation Administration and Department of Transportation

Author: Swygert

SWYGERT

This case concerns the proposed expansion of Chicago's O'Hare International Airport. Petitioners are a group of municipalities situated near the O'Hare Airport and organized into the Suburban O'Hare Commission ("Suburban").*fn1 Respondents are the Department of Transportation, the Federal Aviation Administration ("FAA"), the City of Chicago, and various public officials including the Secretary of the Department of Transportation.

Suburban has petitioned this court to set aside the decision of the FAA approving Chicago's plan to expand the capacity of O'Hare and to enjoin all further construction at the location. For the reasons we now set forth the petition is denied.

I

Located on a 6,925 acre site in Cook and DuPage counties seventeen miles northwest of downtown Chicago, O'Hare is one of three airports owned and operated by the City of Chicago.*fn2

During World War II Douglas Aircraft manufactured C-54 transport planes for the United States Air Corps on the site of what is now O'Hare. The City purchased the Douglas facility for one dollar in 1945, and built the Orchard Place Airport on the site in 1946. In 1949 the facility was renamed for Edward "Butch" O'Hare, a Navy fighter ace and Congressional Medal of Honor recipient.

From 1926 to 1959 Midway Airport was the major airport of the Chicago area and the busiest airport in the world, but chronic congestion at Midway led to the City's decision to make O'Hare the area's major airfield. In 1959 the City began a massive expansion of O'Hare. By July 1962 most major air carriers had shifted operations to O'Hare. O'Hare was designed to accommodate twenty million passengers annually, but currently approximately forty million passengers a year pass through the facility. The airport employs 35,000 people and is one of Chicago's largest employers.

Historically, aviation has been a closely regulated industry. In 1938, when commercial aviation was still in its infancy, Congress enacted the Civil Aeronautics Act. In 1958, in response to rapid and dramatic changes in the nature of aviation, Congress replaced the Civil Aeronautics Act with the Federal Aviation Act, 49 U.S.C. §§ 1301 et seq. (Chapter 20 of Title 49).

In 1946, to encourage the development of airports designed to accommodate interstate and international flights, Congress enacted the Federal Airport Act. This Act was superseded by the Airport and Airway Development Act of 1970. This legislation was in turn replaced by the Airport and Airway Improvement Act of 1982 ("AAIA"), 49 U.S.C. §§ 2201 et seq. (Chapter 31 of Title 49). Both the Federal Aviation Act and the Airport and Airway Improvement Act are administered by the FAA.

The Airport and Airway Development Act of 1970 made federal funds available to certain so-called "hub" cities to engage in a long-range planning process designed to produce an appropriate master plan for regional aviation development. In 1975, with funding provided by the FAA, Chicago hired Landrum & Brown, an aviation consulting firm, to prepare a Master Plan Study for O'Hare.*fn3 The study represented the first attempt to formulate a systematic plan of growth for O'Hare.

Landrum & Brown's Master Plan Study consists of nineteen volumes comprising thousands of pages and examines various factors relevant to airport development.*fn4 The consultants originally forecast a maximum unconstrained demand of 1.4 million flight operations in the Chicago area by 1995. Without significant expansion, Chicago's Midway Airport was projected to receive .3 million of those flights. Meigs Field was to receive .1 million flights. The remaining one million flights would somehow have to be accommodated at O'Hare. Landrum & Brown initially concluded that the projected demand could only be met by the construction of two new runways. This result was unacceptable to significant segments of the suburban population living near O'Hare. Conscious of the community opposition to the addition of new runways the City decided to limit the growth of O'Hare, in theory eliminating the need for the new runways until at least 1995. At the same time the City committed itself to accommodate at least a significant portion of the projected growth of the region's commercial aviation demand.

While the Master Plan Sudy was still in the preparation stage opponents of continued growth at O'Hare took their complaint to the courts. In 1974 then-State Attorney General William Scott sued the FAA in federal district court alleging that the agency had violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., by adopting a policy of unlimited growth at O'Hare. State of Illinois ex rel. Scott v. Butterfield, No. 74 C 2440 (N.D. Ill. 1974). Suburban was permitted to intervene in the litigation. The Butterfield litigation ended on October 15, 1982, when the FAA, the City, and Suburban entered into a consent decree governing future growth at O'Hare. The consent decree provided in relevant part:

P 1a. All future development at O'Hare will comply with all then applicable requirements of Federal and State of Illinois laws requiring environmental analyses and processing.

P 1d. Chicago agrees that it will request the FAA to process an Environmental Impact Statement ("EIS") . . . with respect to any of the following projects (or projects similar in scale or purpose) at O'Hare: (i) Terminal 1 and related concourses and aprons; (ii) International Terminal; (iii) general aviation terminal; (iv) commuter consourse; (v) new air cargo facilities; (vii) runway extensions. The FAA agrees that an environmental impact statement with respect to these projects will be processed to the extent the above projects fall within its jurisdiction. Chicago further agrees that it will not proceed with the construction of any or all of the projects listed in this paragraph 1d until an EIS is completed.

P 1f. Chicago agrees that the entire Master Plan development for O'Hare, including the projects identified in paragraph 1d above, will be presented to the FAA for Airport Layout Plan approval and the related environmental review as a single, comprehensive submission. Chicago agrees that the environmental assessment which it provides to the FAA and the public in connection with these projects will assess the impact of these projects on the assumption that the High Density Airports Rule will have been repealed.

P 1g. The FAA has not made any determination with respect to the matters described in Paragraphs 1e or 1f above, and this Decree does not bind the FAA with regard to any determination it may make respecting these matters.

The consent decree required the City to submit its airport development plans to the FAA in a single, comprehensive Airport Layout Plan, comporting with all relevant environmental provisions. The consent decree also formalized community involvement by establishing the O'Hare Advisory Committee, composed of representatives from both the community and government, as the appropriate forum for consideration of the relationship between O'Hare and its surrounding communities.*fn5 The consent decree further provided for the establishment of a permanent Office of Noise Abatement charged with investigating complains about airport noise and with evaluating the effectiveness of noise abatement procedures.

The parties to the consent decree entered into a separate Intergovernmental Agreement which provided that the communities surrounding O'Hare would take "feasible and reasonable steps to discourage the further development of incompatible land uses around O'Hare." In return, the City agreed that it would imply a specified analytic model in measuring the impact on noise levels of O'Hare operations and that the resulting "noise map" prepared by the City would be based on a 65 Ldn Contour.*fn6 Chicago represented that it would not seek a finding of no significant environmental impact by the FAA.

After the signing of the consent decree the City continued to review its plans for redevelopment of O'Hare. The O'Hare Master Plan originally called for a tree-phase development schedule. n.7 [footnote omitted] As a result of the Butterfield litigation the City adopted a two-phase development plan. Phase I of the two-phase plan primarily involved the construction of a fourth terminal and an associated Concourse L. Phase II is a much more ambitious undertaking. According to the notice of intent published on November 26, 1982 in the Federal Register, the following projects are contemplated:

Extension of Runways 27R, 32L

Construction of second taxiway bridge

Construction of new taxiways

Relocation of the inner/outer terminal area taxiway

New apron construction

Construction of snow removal facilities

Acquisition of the military site and demolition and replacement of existing USAF facilites

Construction of a new International Terminal and Concourse

Expansion of existing terminal buildings

Construction of a new Terminal 1 and new concourses B/C

Construction of a new general aviation facility

Construction of new cargo complex

Expansion of the heating and refrigeration plant

Terminal area roadway improvements

Airport ground access improvements

Construction of a new post ...


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