Congressional Record, Volume 148 Issue 95 (Monday, July 15, 2002)

[Congressional Record Volume 148, Number 95 (Monday, July 15, 2002)]
[House]
[Pages H4609-H4653]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

[[Page H4609]]

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.

[[Page H4610]]

(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

[[Page H4611]]

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.

[[Page H4612]]

``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

[[Page H4613]]

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.

[[Page H4614]]

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

[[Page H4615]]

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

[[Page H4616]]

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

[[Page H4617]]

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

[[Page H4618]]

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.
____

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.''
____

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

[[Page H4619]]

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.
____

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.
____

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

[[Page H4620]]

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.
____

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.
____

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

[[Page H4621]]

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.
____

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

[[Page H4622]]

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 . . .
____

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

[[Page H4623]]

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

[[Page H4624]]

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

[[Page H4625]]

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

[[Page H4626]]

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

[[Page H4627]]

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

[[Page H4628]]

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,

[[Page H4629]]

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:

[[Page H4630]]

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.
____

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

[[Page H4631]]

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.
____

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.''
____

[From The Sun Times, May 20, 2000]

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

[[Page H4632]]

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.
____

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.
____

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

[[Page H4633]]

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.
____

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.
____

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

[[Page H4634]]

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.''
____

Congressional Research Service Memorandum--February 6, 2002

To: Hon. Jesse L. Jackson, Jr., Attention: George Seymour
From: Douglas Reid Weimer, Legislative Attorney, American Law
Division
Subject: 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

[[Page H4635]]

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

[[Page H4636]]

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.

[[Page H4637]]

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.

[[Page H4638]]

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.
____

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.

[[Page H4639]]

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 Interests
Date: 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

[[Page H4640]]

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

[[Page H4641]]

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.

[[Page H4642]]

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.

[[Page H4643]]

Moving Graves Can Be ``Royal Mess''

[From the Chicago Sun-Times, July 14, 2002]

(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

[[Page H4644]]

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

[[Page H4645]]

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

[[Page H4646]]

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

[[Page H4647]]

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,

[[Page H4648]]

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

[[Page H4649]]

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

[[Page H4650]]

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

[[Page H4651]]

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

[[Page H4652]]

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.

[[Page H4653]]

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.

____________________