Congressional Record, Volume 148 Issue 101 (Tuesday, July 23, 2002)

[Congressional Record Volume 148, Number 101 (Tuesday, July 23, 2002)]
[House]
[Pages H5114-H5191]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

NATIONAL AVIATION CAPACITY EXPANSION ACT OF 2002

Mr. MICA. 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

[[Page H5115]]

Air Act (42 U.S.C. 7401 et seq.) to prevent construction and
operation of the project.
(8) The city of Chicago is unwilling to continue to go
forward with the project without assurance that future
Governors of Illinois will not be able to stop the project,
thereby endangering the value of the investment of city and
Federal resources in the project.
(9) Because of the importance of O'Hare to the national air
transportation system and the growing congestion at the
airport and because of the expenditure of Federal funds for a
master-planning grant for expansion of capacity at O'Hare, it
is important to the national air transportation system,
interstate commerce, and the efficient expenditure of Federal
funds, that the city of Chicago's proposals to the Federal
Aviation Administration have an opportunity to be considered
for Federal approval and possible funding, that the city's
requests for changes to the State implementation plan to
allow such projects not be denied arbitrarily, and that, if
the Federal Aviation Administration approves the project and
funding for a portion of its cost, the city can implement and
use the project.
(10) Any application submitted by the city of Chicago for
expansion of O'Hare should be evaluated by the Federal
Aviation Administration and other Federal agencies under all
applicable Federal laws and regulations and should be
approved only if the application meets all requirements
imposed by such laws and regulations.
(11) As part of the agreement between the city and the
State allowing the city to submit an application for
improvement of O'Hare, there has been an agreement for the
continued operation of Merrill C. Meigs Field by the city,
and it has also been agreed that, if the city does not follow
the agreement on Meigs Field, Federal airport improvement
program funds should be withheld from the city for O'Hare.
(12) To facilitate implementation of the agreement allowing
the city to submit an application for O'Hare, it is desirable
to require by law that Federal airport improvement program
funds for O'Hare be administered to require continued
operation of Merrill C. Meigs Field by the city, as proposed
in the agreement.
(13) To facilitate implementation of the agreement allowing
the city to submit an application for O'Hare, it is desirable
to enact into law provisions of the agreement relating to
noise and public roadway access. These provisions are not
inconsistent with Federal law.
(14) If the Federal Aviation Administration approves an
airport layout plan for O'Hare directly related to the
agreement reached on December 5, 2001, such approvals will
constitute an action of the United States under Federal law
and will be an important first step in the process by which
the Government could decide that these plans should receive
Federal assistance under chapter 471 of title 49, United
States Code, relating to airport development.
(15) The agreement between the State of Illinois and the
city of Chicago includes agreement that the construction of
an airport in Peotone, Illinois, would be proposed by the
State to the Federal Aviation Administration. Like the O'Hare
expansion proposal, the Peotone proposal should receive full
consideration by the Federal Aviation Administration under
standard procedures for approving and funding an airport
improvement project, including all applicable safety, utility
and efficiency, and environmental review.
(16) Gary/Chicago Airport in Gary, Indiana, and the Greater
Rockford Airport, Illinois, may alleviate congestion and
provide additional capacity in the greater Chicago
metropolitan region. Like the O'Hare airport expansion
proposal, expansion efforts by Gary/Chicago and Greater
Rockford airports should receive full consideration by the
Federal Aviation Administration under standard procedures for
approving and funding an airport capacity improvement
project, including all applicable safety, utility and
efficiency, and environmental reviews.

SEC. 103. STATE, CITY, AND FAA AUTHORITY.

(a) Prohibition.--In furtherance of the purpose of this Act
to achieve significant air transportation benefits for
interstate and foreign commerce, if the Federal Aviation
Administration makes, or at any time after December 5, 2001
has made, a grant to the city of Chicago, Illinois, with the
approval of the State of Illinois for planning or
construction of runway improvements at O'Hare International
Airport, the State of Illinois, and any instrumentality or
political subdivision of the State, are prohibited from
exercising authority under sections 38.01, 47, and 48 of the
Illinois Aeronautics Act (620 ILCS
5/) to prevent, or have the effect of preventing--
(1) further consideration by the Federal Aviation
Administration of an O'Hare airport layout plan directly
related to the agreement reached by the State and the city on
December 5, 2001, with respect to O'Hare;
(2) construction of projects approved by the Administration
in such O'Hare airport layout plan; or
(3) application by the city of Chicago for Federal airport
improvement program funding for projects approved by the
Administration and shown on such O'Hare airport layout plan.
(b) Applications for Federal Funding.--Notwithstanding any
other provision of law, the city of Chicago is authorized to
submit directly to the Federal Aviation Administration
without the approval of the State of Illinois, applications
for Federal airport improvement program funding for planning
and construction of a project shown on an O'Hare airport
layout plan directly related to the agreement reached on
December 5, 2001, and to accept, receive, and disburse such
funds without the approval of the State of Illinois.
(c) Limitation.--If the Federal Aviation Administration
determines that an O'Hare airport layout plan directly
related to the agreement reached on December 5, 2001, will
not be approved by the Administration, subsections (a) and
(b) of this section shall expire and be of no further effect
on the date of such determination.
(d) Western Public Roadway Access.--As provided in the
December 5, 2001, agreement referred to in subsection (a),
the Administrator of the Federal Aviation Administration
shall not consider an airport layout plan submitted by the
city of Chicago that includes the runway redesign plan,
unless the airport layout plan includes public roadway access
through the existing western boundary of O'Hare to passenger
terminal and parking facilities located inside the boundary
of O'Hare and reasonably accessible to such western access.
Approval of western public roadway access shall be subject to
the condition that the cost of construction be paid for from
airport revenues consistent with Administration revenue use
requirements.
(e) Noise Mitigation.--As provided in the December 5, 2001,
agreement referred to in subsection (a), the following apply:
(1) Approval by the Administrator of an airport layout plan
that includes the runway redesign plan shall require the city
of Chicago to offer acoustical treatment of all single-family
houses and schools located within the 65 DNL noise contour
for each construction phase of the runway redesign plan,
subject to Administration guidelines and specifications of
general applicability. The Administrator may not approve the
runway redesign plan unless the city provides the
Administrator with information sufficient to demonstrate that
the acoustical treatment required by this paragraph is
feasible.
(2)(A) Approval by the Administrator of an airport layout
plan that includes the runway redesign plan shall be subject
to the condition that noise impact of aircraft operations at
O'Hare in the calendar year immediately following the year in
which the first new runway is first used and in each calendar
year thereafter will be less than the noise impact in
calendar year 2000.
(B) The Administrator shall make the determination
described in subparagraph (A)--
(i) using, to the extent practicable, the procedures
specified in part 150 of title 14, Code of Federal
Regulations;
(ii) using the same method for calendar year 2000 and for
each forecast year; and
(iii) by determining noise impact solely in terms of the
aggregate number of square miles and the aggregate number of
single-family houses and schools exposed to 65 or greater
decibels using the DNL metric, including only single-family
houses and schools in existence on the last day of calendar
year 2000. The Administrator shall make such determination
based on information provided by the city of Chicago, which
shall be independently verified by the Administrator.
(C) The conditions described in this subsection shall be
enforceable exclusively through the submission and approval
of a noise compatibility plan under part 150 of title 14,
Code of Federal Regulations. The noise compatibility plan
submitted by the city of Chicago shall provide for compliance
with this subsection. The Administrator shall approve
measures sufficient for compliance with this subsection in
accordance with procedures under such part 150. The United
States shall have no financial responsibility or liability if
operations at O'Hare in any year do not satisfy the
conditions in this subsection.
(f) Report to Congress.--If the runway redesign plan
described in this section has not received all Federal,
State, and local permits and approvals necessary to begin
construction by December 31, 2004, the Administrator shall
submit a status report to the Committee on Commerce, Science,
and Transportation of the Senate and the Committee on
Transportation and Infrastructure of the House of
Representatives within 120 days of such date identifying each
permit and approval necessary for the project and the status
of each such action.
(g) Judicial Review.-- An order issued by the
Administrator, in whole or in part, under this section shall
be deemed to be an order issued under part A of subtitle VII
of title 49, United States Code, and shall be reviewed in
accordance with the procedure in section 46110 of such title.
(h) Definition.--In this section, the terms ``airport
layout plan directly related to the agreement reached on
December 5, 2001'' and ``such airport layout plan'' mean a
plan that shows--
(1) 6 parallel runways at O'Hare oriented in the east-west
direction with the capability for 4 simultaneous independent
visual aircraft arrivals in both directions, and all
associated taxiways, navigational facilities, and other
related facilities; and
(2) closure of existing runways 14L-32R, 14R-32L and 18-36
at O'Hare.

SEC. 104. CLEAN AIR ACT.

(a) Implementation Plan.--An implementation plan shall be
prepared by the State of Illinois under the Clean Air Act (42
U.S.C.

[[Page H5116]]

7401 et seq.) in accordance with the State's customary
practices for accounting for and regulating emissions
associated with activity at commercial service airports. The
State shall not deviate from its customary practices under
the Clean Air Act for the purpose of interfering with the
construction of a runway pursuant to the redesign plan or the
south surburban airport. At the request of the Administrator
of the Federal Aviation Administration, the Administrator of
the Environmental Protection Agency shall, in consultation
with the Administrator of the Federal Aviation
Administration, determine that the foregoing condition has
been satisfied before approving an implementation plan.
Nothing in this section shall be construed to affect the
obligations of the State under section 176(c) of the Clean
Air Act (42 U.S.C. 7506(c)).
(b) Limitation on Approval.--The Administrator of the
Federal Aviation Administration shall not approve the runway
redesign plan unless the Administrator of the Federal
Aviation Administration determines that the construction and
operation will include, to the maximum extent feasible, the
best management practices then reasonably available to and
used by operators of commercial service airports to mitigate
emissions regulated under the implementation plan.

SEC. 105. MERRILL C. MEIGS FIELD.

The State of Illinois and the city of Chicago, Illinois,
have agreed to the following:
(1) Until January 1, 2026, the Administrator of the Federal
Aviation Administration shall withhold all Federal airport
grant funds respecting O'Hare International Airport, other
than grants involving national security and safety, unless
the Administrator is reasonably satisfied that the following
conditions have been met:
(A) Merrill C. Meigs Field in Chicago either is being
operated by the city of Chicago as an airport or has been
closed by the Administration for reasons beyond the city's
control.
(B) The city of Chicago is providing, at its own expense,
all off-airport roads and other access, services, equipment,
and other personal property that the city provided in
connection with the operation of Meigs Field on and prior to
December 1, 2001.
(C) The city of Chicago is operating Meigs Field, at its
own expense, at all times as a public airport in good
condition and repair open to all users capable of utilizing
the airport and is maintaining the airport for such public
operations at least from 6:00 A.M. to 10:00 P.M. 7 days a
week whenever weather conditions permit.
(D) The city of Chicago is providing or causing its agents
or independent contractors to provide all services (including
police and fire protection services) provided or offered at
Meigs Field on or immediately prior to December 1, 2001,
including tie-down, terminal, refueling, and repair services,
at rates that reflect actual costs of providing such goods
and services.
(2) If Meigs Field is closed by the Administration for
reasons beyond the city of Chicago's control, the conditions
described in subparagraphs (B) through (D) of paragraph (1)
shall not apply.
(3) After January 1, 2006, the Administrator shall not
withhold Federal airport grant funds to the extent the
Administrator determines that withholding of such funds would
create an unreasonable burden on interstate commerce.
(4) The Administrator shall not enforce the conditions
listed in paragraph (1) if the State of Illinois enacts a law
on or after January 1, 2006, authorizing the closure of Meigs
Field.
(5) Net operating losses resulting from operation of Meigs
Field, to the extent consistent with law, are expected to be
paid by the 2 air carriers at O'Hare International Airport
that paid the highest amount of airport fees and charges at
O'Hare International Airport for the preceding calendar year.
Notwithstanding any other provision of law, the city of
Chicago may use airport revenues generated at O'Hare
International Airport to fund the operation of Meigs Field.

SEC. 106. APPLICATION WITH EXISTING LAW.

Nothing in this Act shall give any priority to or affect
availability or amounts of funds under chapter 471 of title
49, United States Code, to pay the costs of O'Hare
International Airport, improvements shown on an airport
layout plan directly related to the agreement reached by the
State of Illinois and the city of Chicago, Illinois, on
December 5, 2001.

SEC. 107. SENSE OF CONGRESS ON QUIET AIRCRAFT TECHNOLOGY
RESEARCH AND DEVELOPMENT.

It is the sense of the Congress that the Office of
Environment and Energy of the Federal Aviation Administration
should be funded to carry out noise mitigation programming
and quiet aircraft technology research and development at a
level of $37,000,000 for fiscal year 2004 and $47,000,000 for
fiscal year 2005.

TITLE II--AIRPORT STREAMLINING APPROVAL PROCESS

SEC. 201. SHORT TITLE.

This title may be cited as the ``Airport Streamlining
Approval Process Act of 2002''.

SEC. 202. FINDINGS.

Congress finds that--
(1) airports play a major role in interstate and foreign
commerce;
(2) congestion and delays at our Nation's major airports
have a significant negative impact on our Nation's economy;
(3) airport capacity enhancement projects at congested
airports are a national priority and should be constructed on
an expedited basis;
(4) airport capacity enhancement projects must include an
environmental review process that provides local citizenry an
opportunity for consideration of and appropriate action to
address environmental concerns; and
(5) the Federal Aviation Administration, airport
authorities, communities, and other Federal, State, and local
government agencies must work together to develop a plan, set
and honor milestones and deadlines, and work to protect the
environment while sustaining the economic vitality that will
result from the continued growth of aviation.

SEC. 203. PROMOTION OF NEW RUNWAYS.

Section 40104 of title 49, United States Code, is amended
by adding at the end the following:
``(c) Airport Capacity Enhancement Projects at Congested
Airports.--In carrying out subsection (a), the Administrator
shall take action to encourage the construction of airport
capacity enhancement projects at congested airports as those
terms are defined in section 47179.''.

SEC. 204. AIRPORT PROJECT STREAMLINING.

(a) In General.--Chapter 471 of title 49, United States
Code, is amended by inserting after section 47153 the
following:

``SUBCHAPTER III--AIRPORT PROJECT STREAMLINING

``Sec. 47171. DOT as lead agency

``(a) Airport Project Review Process.--The Secretary of
Transportation shall develop and implement a coordinated
review process for airport capacity enhancement projects at
congested airports.
``(b) Coordinated Reviews.--The coordinated review process
under this section shall provide that all environmental
reviews, analyses, opinions, permits, licenses, and approvals
that must be issued or made by a Federal agency or airport
sponsor for an airport capacity enhancement project at a
congested airport will be conducted concurrently, to the
maximum extent practicable, and completed within a time
period established by the Secretary, in cooperation with the
agencies identified under subsection (c) with respect to the
project.
``(c) Identification of Jurisdictional Agencies.--With
respect to each airport capacity enhancement project at a
congested airport, the Secretary shall identify, as soon as
practicable, all Federal and State agencies that may have
jurisdiction over environmental-related matters that may be
affected by the project or may be required by law to conduct
an environmental-related review or analysis of the project or
determine whether to issue an environmental-related permit,
license, or approval for the project.
``(d) State Authority.--If a coordinated review process is
being implemented under this section by the Secretary with
respect to a project at an airport within the boundaries of a
State, the State, consistent with State law, may choose to
participate in such process and provide that all State
agencies that have jurisdiction over environmental-related
matters that may be affected by the project or may be
required by law to conduct an environmental-related review or
analysis of the project or determine whether to issue an
environmental-related permit, license, or approval for the
project, be subject to the process.
``(e) Memorandum of Understanding.--The coordinated review
process developed under this section may be incorporated into
a memorandum of understanding for a project between the
Secretary and the heads of other Federal and State agencies
identified under subsection (c) with respect to the project
and the airport sponsor.
``(f) Effect of Failure To Meet Deadline.--
``(1) Notification of congress and ceq.--If the Secretary
determines that a Federal agency, State agency, or airport
sponsor that is participating in a coordinated review process
under this section with respect to a project has not met a
deadline established under subsection (b) for the project,
the Secretary shall notify, within 30 days of the date of
such determination, the Committee on Transportation and
Infrastructure of the House of Representatives, the Committee
on Commerce, Science, and Transportation of the Senate, the
Council on Environmental Quality, and the agency or sponsor
involved about the failure to meet the deadline.
``(2) Agency report.--Not later than 30 days after date of
receipt of a notice under paragraph (1), the agency or
sponsor involved shall submit a report to the Secretary, the
Committee on Transportation and Infrastructure of the House
of Representatives, the Committee on Commerce, Science, and
Transportation of the Senate, and the Council on
Environmental Quality explaining why the agency or sponsor
did not meet the deadline and what actions it intends to take
to complete or issue the required review, analysis, opinion,
license, or approval.
``(g) Purpose and Need.--For any environmental review,
analysis, opinion, permit, license, or approval that must be
issued or made by a Federal or State agency that is
participating in a coordinated review process under this
section with respect to an airport capacity enhancement
project at a congested airport and that requires an analysis
of purpose and need for the project, the agency,
notwithstanding any other provision of law,

[[Page H5117]]

shall be bound by the project purpose and need as defined by
the Secretary.
``(h) Alternatives Analysis.--The Secretary shall determine
the reasonable alternatives to an airport capacity
enhancement project at a congested airport. Any other Federal
or State agency that is participating in a coordinated review
process under this section with respect to the project shall
consider only those alternatives to the project that the
Secretary has determined are reasonable.
``(i) Solicitation and Consideration of Comments.--In
applying subsections (g) and (h), the Secretary shall solicit
and consider comments from interested persons and
governmental entities.

``Sec. 47172. Categorical exclusions

``Not later than 120 days after the date of enactment of
this section, the Secretary of Transportation shall develop
and publish a list of categorical exclusions from the
requirement that an environmental assessment or an
environmental impact statement be prepared under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) for
projects at airports.

``Sec. 47173. Access restrictions to ease construction

``At the request of an airport sponsor for a congested
airport, the Secretary of Transportation may approve a
restriction on use of a runway to be constructed at the
airport to minimize potentially significant adverse noise
impacts from the runway only if the Secretary determines that
imposition of the restriction--
``(1) is necessary to mitigate those impacts and expedite
construction of the runway;
``(2) is the most appropriate and a cost-effective measure
to mitigate those impacts, taking into consideration any
environmental tradeoffs associated with the restriction; and
``(3) would not adversely affect service to small
communities, adversely affect safety or efficiency of the
national airspace system, unjustly discriminate against any
class of user of the airport, or impose an undue burden on
interstate or foreign commerce.

``Sec. 47174. Airport revenue to pay for mitigation

``(a) In General.--Notwithstanding section 47107(b),
section 47133, or any other provision of this title, the
Secretary of Transportation may allow an airport sponsor
carrying out an airport capacity enhancement project at a
congested airport to make payments, out of revenues generated
at the airport (including local taxes on aviation fuel), for
measures to mitigate the environmental impacts of the project
if the Secretary finds that--
``(1) the mitigation measures are included as part of, or
are consistent with, the preferred alternative for the
project in the documentation prepared pursuant to the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.);
``(2) the use of such revenues will provide a significant
incentive for, or remove an impediment to, approval of the
project by a State or local government; and
``(3) the cost of the mitigation measures is reasonable in
relation to the mitigation that will be achieved.
``(b) Mitigation of Aircraft Noise.--Mitigation measures
described in subsection (a) may include the insulation of
residential buildings and buildings used primarily for
educational or medical purposes to mitigate the effects of
aircraft noise and the improvement of such buildings as
required for the insulation of the buildings under local
building codes.

``Sec. 47175. Airport funding of FAA staff

``(a) Acceptance of Sponsor-Provided Funds.--
Notwithstanding any other provision of law, the Administrator
of the Federal Aviation Administration may accept funds from
an airport sponsor, including funds provided to the sponsor
under section 47114(c), to hire additional staff or obtain
the services of consultants in order to facilitate the timely
processing, review, and completion of environmental
activities associated with an airport development project.
``(b) Administrative Provision.--Instead of payment from an
airport sponsor from funds apportioned to the sponsor under
section 47114, the Administrator, with agreement of the
sponsor, may transfer funds that would otherwise be
apportioned to the sponsor under section 47114 to the account
used by the Administrator for activities described in
subsection (a).
``(c) Receipts Credited as Offsetting Collections.--
Notwithstanding section 3302 of title 31, any funds accepted
under this section, except funds transferred pursuant to
subsection (b)--
``(1) shall be credited as offsetting collections to the
account that finances the activities and services for which
the funds are accepted;
``(2) shall be available for expenditure only to pay the
costs of activities and services for which the funds are
accepted; and
``(3) shall remain available until expended.
``(d) Maintenance of Effort.--No funds may be accepted
pursuant to subsection (a), or transferred pursuant to
subsection (b), in any fiscal year in which the Federal
Aviation Administration does not allocate at least the amount
it expended in fiscal year 2002, excluding amounts accepted
pursuant to section 337 of the Department of Transportation
and Related Agencies Appropriations Act, 2002 (115 Stat.
862), for the activities described in subsection (a).

``Sec. 47176. Authorization of appropriations

``In addition to the amounts authorized to be appropriated
under section 106(k), there is authorized to be appropriated
to the Secretary of Transportation, out of the Airport and
Airway Trust Fund established under section 9502 of the
Internal Revenue Code of 1986 (26 U.S.C. 9502), $2,100,000
for fiscal year 2003 and $4,200,000 for each fiscal year
thereafter to facilitate the timely processing, review, and
completion of environmental activities associated with
airport capacity enhancement projects at congested airports.

``Sec. 47177. Judicial review

``(a) Filing and Venue.--A person disclosing a substantial
interest in an order issued by the Secretary of
Transportation or the head of any other Federal agency under
this part or a person or agency relying on any determination
made under this part may apply for review of the order by
filing a petition for review in the United States Court of
Appeals for the District of Columbia Circuit or in the court
of appeals of the United States for the circuit in which the
person resides or has its principal place of business. The
petition must be filed not later than 60 days after the order
is issued. The court may allow the petition to be filed after
the 60th day only if there are reasonable grounds for not
filing by the 60th day.
``(b) Judicial Procedures.--When a petition is filed under
subsection (a) of this section, the clerk of the court
immediately shall send a copy of the petition to the
Secretary or the head of any other Federal agency involved.
The Secretary or the head of such other agency shall file
with the court a record of any proceeding in which the order
was issued.
``(c) Authority of Court.--When the petition is sent to the
Secretary or the head of any other Federal agency involved,
the court has exclusive jurisdiction to affirm, amend,
modify, or set aside any part of the order and may order the
Secretary or the head of such other agency to conduct further
proceedings. After reasonable notice to the Secretary or the
head of such other agency, the court may grant interim relief
by staying the order or taking other appropriate action when
good cause for its action exists. Findings of fact by the
Secretary or the head of such other agency are conclusive if
supported by substantial evidence.
``(d) Requirement for Prior Objection.--In reviewing an
order of the Secretary or the head of any other Federal
agency under this section, the court may consider an
objection to the action of the Secretary or the head of such
other agency only if the objection was made in the proceeding
conducted by the Secretary or the head of such other agency
or if there was a reasonable ground for not making the
objection in the proceeding.
``(e) Supreme Court Review.--A decision by a court under
this section may be reviewed only by the Supreme Court under
section 1254 of title 28.
``(f) Order Defined.--In this section, the term `order'
includes a record of decision or a finding of no significant
impact.

``Sec. 47178. Definitions

``In this subchapter, the following definitions apply:
``(1) Airport sponsor.--The term `airport sponsor' has the
meaning given the term `sponsor' under section 47102.
``(2) Congested airport.--The term `congested airport'
means an airport that accounted for at least 1 percent of all
delayed aircraft operations in the United States in the most
recent year for which such data is available and an airport
listed in table 1 of the Federal Aviation Administration's
Airport Capacity Benchmark Report 2001.
``(3) Airport capacity enhancement project.--The term
`airport capacity enhancement project' means--
``(A) a project for construction or extension of a runway,
including any land acquisition, taxiway, or safety area
associated with the runway or runway extension; and
``(B) such other airport development projects as the
Secretary may designate as facilitating a reduction in air
traffic congestion and delays.''.
(b) Conforming Amendment.--The analysis for chapter 471 of
such title is amended by adding at the end the following:

``SUBCHAPTER III--AIRPORT PROJECT STREAMLINING

``47171. DOT as lead agency.
``47172. Categorical exclusions.
``47173. Access restrictions to ease construction.
``47174. Airport revenue to pay for mitigation.
``47175. Airport funding of FAA staff.
``47176. Authorization of appropriations.
``47177. Judicial review.
``47178. Definitions.''.

SEC. 205. GOVERNOR'S CERTIFICATE.

Section 47106(c) of title 49, United States Code, is
amended--
(1) in paragraph (1)--
(A) by inserting ``and'' after the semicolon at the end of
subparagraph (A)(ii);
(B) by striking subparagraph (B); and
(C) by redesignating subparagraph (C) as subparagraph (B);
(2) in paragraph (2)(A) by striking ``stage 2'' and
inserting ``stage 3'';
(3) by striking paragraph (4); and
(4) by redesignating paragraph (5) as paragraph (4).

SEC. 206. CONSTRUCTION OF CERTAIN AIRPORT CAPACITY PROJECTS.

Section 47504(c)(2) of title 49, United States Code, is
amended--
(1) by striking ``and'' at the end of subparagraph (C);

[[Page H5118]]

(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
Florida (Mr. Mica) and the gentleman from Illinois (Mr. Lipinski) each
will control 20 minutes.
Mr. LIPINSKI. Mr. Speaker, I ask unanimous consent to yield the 20
minutes that is designated to me to the gentleman from Illinois (Mr.
Jackson), who is a true opponent of this legislation.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Illinois?
There was no objection.
The SPEAKER pro tempore. The Chair recognizes the gentleman from
Florida (Mr. Mica).
Mr. MICA. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I am pleased today to rise in support of H.R. 3479, the
National Aviation Capacity Enhancement Act. This legislation was
introduced by the ranking Democrat of the Subcommittee on Aviation, the
gentleman from Illinois (Mr. Lipinski).
This legislation codifies a long-sought agreement that was reached
between the Governor of Illinois and the mayor of Chicago to address
the critical aviation needs in the Chicago region. In December of 2001
after some 20 years of disagreement and in action, State and local
leaders approved a plan to expand Chicago's O'Hare International
Airport. The agreement also requires full FAA consideration of projects
at regional reliever airports. These include the proposed South
Suburban Airport in Peotone, and airports in Gary, Indiana, and
Rockford, Illinois.
H.R. 3479 is not, as some have claimed, an attempt for the Federal
Government to in any way usurp local decision-making authority. The
State and local decision-makers in the greater Chicago region have come
to an agreement. This bill ensures that the agreement in fact will be
implemented, but only if all normal procedures for FAA approval are
completed and Federal funding is received.
Federal approvals can take years. Title 2 of this legislation would
help expedite that process. However, we do not want local leaders to
change their minds while that process is in an ongoing situation and
after having spent millions and millions of taxpayer dollars.
Why should Congress care or become involved in ensuring the viability
of this important Chicago agreement? It is simple. Chicago O'Hare
Airport is absolutely vital to our National aviation system and also to
our interstate commerce and this Nation's economy.
O'Hare has consistently ranked as one of the world's busiest
airports. It supports domestic hub operations for two major airlines,
and over 70 million Americans a year and travelers use this facility.

{time} 1245

Even during the economic downturn and with the aftermath of the
tragic events of September 11, aircraft activity at O'Hare was up
slightly last year. Unfortunately, O'Hare continues to be one of the
most congested and delayed airports in the country. If future
congestion at O'Hare affected only the Chicago area, we might not need
to stand here before all of Congress to address this issue. However,
the congestion in Chicago, in O'Hare often closes down and causes
serious delay in our aviation activity across the Nation.
This legislation does provide assurances needed to proceed with the
much-needed projects at O'Hare, and again, it is the codification of
local and State governments.
Some of our colleagues have raised questions regarding this
legislation, even said it is unconstitutional or supersedes State law.
That is not the case. However, the preemption language contained in
this legislation is extremely limited and is tied to a decision by the
FAA to fund the O'Hare project. The preemption of State law would
expire immediately upon a decision by the Federal Aviation
Administration not to fund the construction of the O'Hare Capacity
Enhancement Project.
This legislation ensures that State law will not prevent the Federal
Government from spending Federal funds the way the Federal Government
intends they be spent. I would ask this body to remember State and
local officials have already reached an agreement regarding Chicago's
regional aviation projects, but the agreement is not binding on future
administrations, and we are not going to go round in circles any longer
on this. We have to look at the national interest.
Therefore, before committing to a $6 billion capacity enhancement
project at O'Hare, and it can even be more at this airport, it is
absolutely reasonable to seek assurance that the agreement will not be
abandoned by future State or future debate on this issue. This bill
simply codifies a local agreement that addresses regional and our
national transportation needs.
This bill is good for interstate commerce. It is good for our
economy, and it will protect our national interests, which is part of
my responsibility. So, therefore, I support this legislation. I urge
Members on all sides, regardless of their persuasion, to support this
bill.
Mr. Speaker, I reserve the balance of my time.
Mr. JACKSON of Illinois. Mr. Speaker, I yield myself such time as I
may consume.
First, let me begin by thanking the gentleman from Florida (Mr.
Mica), the chairman, and the gentleman from Florida (Mr. Lipinski), the
ranking member, for their work on H.R. 3479. There are many reasons why
I oppose H.R. 3479, none of which have anything to do with them
personally. I want to share with my colleagues some reasons why they
should be opposed to the National Aviation Capacity and Expansion Act.
Mr. Speaker, just a week ago, this House rejected by a small margin
this measure. There are a number of bills that we could be considering
before the Congress, including saving Social Security, Medicare and
Medicaid. There are a number of important measures that could be on the
suspension calendar, but what has changed in a week for a bill that was
rejected one week ago to be brought back in such short order, back on
the noncontroversial suspension calendar?
Mr. Speaker, this is a highly controversial bill. This should offend
every House traditionalist and institutionalist. It violates the
established processes set up by the House of Representatives, and even
if my colleagues agree on the substance, they should be against the
process.
H.R. 3479 should be a stand-alone bill that is fully debated before
the House, with the possibility of adding amendments to improve this
bill. It should not be on the suspension calendar. Many of my
colleagues believe that they are voting to codify, as the gentleman
from Florida (Mr. Mica) said an agreement between Mayor Daley and the
governor of our State, Governor Ryan, but this bill, the House version
of the bill, does not reflect that deal.
Their agreement promised priority status for a south suburban airport
in Peotone and O'Hare expansion. While I do not support the O'Hare-
designed plan that is articulated in the bill, and I do believe in
O'Hare modernization, the idea that this bill provides for O'Hare
expansion but does not, I repeat, does not, give priority status to
Peotone, offends those of us who have been fighting at least for the
last 16 years to make aviation capacity and to alleviate the crisis for
our entire Nation, a reality for all Americans.
Both sides agree that there is a capacity crisis at O'Hare. The
disagreement comes over how best to solve it. A new south suburban
airport in Peotone offers a faster and cheaper and safer, a cleaner and
more permanent solution. What do I mean? I mean that after O'Hare
expansion is completed if air travel expands as projected, we will

[[Page H5119]]

still be in the same capacity crisis that we are in today.
This is a 15-year construction project. So why spend more money, take
longer, increase environmental problems, put the flying public at
greater risk, support a temporary solution and increase the economic
and racial divide in Chicago when there is a better way of resolving
the current aviation capacity crisis?
O'Hare Airport is the economic magnet that provides jobs and economic
security for Chicago's north side and northwest suburbs. Midway
Airport, housed in the gentleman from Illinois' (Mr. Lipinski)
district, is the economic magnet that provides jobs and economic
security for Chicago's southwest side. There is no similar economic
engine for Chicago's south side and south suburbs.
O'Hare expansion puts in 195,000 new jobs and $19 billion of economic
activity in an area that already has an overabundance. For example, the
biggest beneficiary of O'Hare is Elk Grove Village, a city of 35,000
people where over 100,000 people come to work every day. That is three
jobs for every one person.
The greatest beneficiary of O'Hare, Mayor Craig Johnson of Elk Grove
Village, is one of the biggest supporters of Peotone. By contrast, some
communities in my district have 60 people for every one job.
Finally, it just so happens that the areas where O'Hare and Midway
Airports are located are primarily where whites live. African Americans
live primarily south and in the south suburbs, but African American
families need economically stable families and communities that have a
future and can send their children to college, too. We need greater
economic balance in the Chicago metropolitan area so that all of the
people have jobs and economic security.
The gentleman from Illinois (Mr. Lipinski) says that 15 environmental
groups, including the Sierra Club, support the language in this bill.
He, of course, is implying that they have endorsed it. The gentleman
from Illinois (Mr. Lipinski) knows better. They have not endorsed it. I
also asked the gentleman from Illinois (Mr. Lipinski) to supply me with
the names of the other environmental groups who he says support the
language in this bill, and he has failed to do so.
O'Hare is already the largest polluter in the Chicago area. Doubling
the number of flights into the 7,000 acres that houses O'Hare means
pollution levels will explode. A recent study found there was an excess
of 800 new incidences of cancer each year, over and above what would be
expected based on the State's average, in eight northeastern
communities downwind of O'Hare. Peotone's 24,000 acre site has a built-
in environmental safety zone.

Mr. Speaker, the O'Hare expansion plan is obviously anti-consumer.
Two airlines, American and United, control 90 percent of the flights in
and out of O'Hare. It is a duopoly, and due to a lack of competition,
fares at O'Hare continue climbing at faster than the national average.
Mr. Speaker, I do want to address the constitutional issue before I
reserve the balance of my time. The United States Supreme Court stated
in Printz versus United States decision in 1997 that dual sovereignty
is incontestable, to preemp State law, that is, the Illinois
Aeronautics Act, and give power to the city of Chicago and the city of
Chicago's ability to come directly to the Federal Government for the
purposes of expanding O'Hare airport.
The Printz versus United States decision emphasized that that is a
constitutional structural barrier to Congress intruding on a State's
sovereignty, and this structural barrier could not be avoided by
claiming that constitutional authority was, A, pursuant to the commerce
power clause. We have heard the gentleman from Florida (Mr. Mica) talk
about the number of jobs and the fact this is a factor in our economy.
It will create 195,000 jobs, $19 billion in economic activity pursuant
to the commerce power. According to Printz versus the United States
these arguments are not available to the chairman of the committee.
The necessary and proper clause of the Constitution, we have heard
there is an aviation capacity crisis, that this bill seeks to
alleviate. According to the Printz versus the United States, Congress
cannot use the necessary and proper clause argument as a basis for
preempting State law.
Last but not least, Printz versus the United States said that the
Federal law preempted State law under the Supremacy Clause, that
Congress can use its power to solve impasses, that should be solved at
the local level in the city of Chicago and in the State of Illinois.
In other words, Mr. Speaker, all of the arguments that we have heard,
including the arguments of my good friend, the chairman, are all
unconstitutional according to Printz versus the United States, and
whether my colleagues agree with my constitutional interpretation or
not, because there is a legitimate constitutional interpretive
disagreement that is taking place, this can only be solved in Federal
court, which means the idea of expanding aviation capacity in northern
Illinois is likely to be tied up in the Federal courts for a number of
years, and therefore, we will not be expanding aviation capacity as the
chairman and as the ranking member seek to do.
Therefore, Mr. Speaker, I urge my colleagues to reject this bill. It
could be improved if it were brought in the regular order and
amendments were allowed to include the faster, cheaper, safer and
cleaner proposal, building a third airport in Peotone.
Mr. Speaker, I reserve the balance of my time.
Mr. MICA. Mr. Speaker, I am pleased to yield 10 minutes to the
gentleman from Illinois (Mr. Lipinski), and I ask unanimous consent
that he be allowed to control the time.
The SPEAKER pro tempore (Mr. Isakson). Is there objection to the
request of the gentleman from Florida?
There was no objection.
Mr. LIPINSKI. Mr. Speaker, I ask unanimous consent to give the
gentleman from Illinois (Mr. Jackson) an additional 10 minutes, the
gentleman from Florida (Mr. Mica) an additional 10 minutes, which his
10 minutes will be split with 5 minutes for himself, 5 minutes for my
side.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Illinois?
There was no objection.
Mr. JACKSON of Illinois. Mr. Speaker, may I inquire as to how much
time we have remaining.
The SPEAKER pro tempore. The gentleman from Illinois (Mr. Jackson)
has 22\1/2\ minutes, the gentleman from Florida (Mr. Mica) has 14\1/2\
minutes. There is 5 minutes reallocated to the gentleman from Illinois.
Mr. LIPINSKI. Mr. Speaker, in the additional time request, it would
be 10 minutes for the gentleman from Illinois (Mr. Jackson), 10 minutes
for the gentleman from Florida (Mr. Mica), which he automatically
yields to me 5 minutes. So I should have 15 minutes at the present
time.
The SPEAKER pro tempore. The gentleman is correct.
Mr. LIPINSKI. Mr. Speaker, I yield 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 thank the gentleman for yielding me the
time.
Mr. Speaker, I rise today in strong support of H.R. 3479, the
National Aviation Capacity Expansion Act, and would point out that I
believe one of the reasons we are here today under suspension is a
broad-ranging bipartisan support that exists for this legislation
today.
Whether we talk about a Democratic mayor for the city of Chicago,
whether a Republican governor of the State of Illinois, whether we talk
about the Illinois Chamber of Commerce, or whether we talk about the
AFL-CIO, whether we talk about the Republican or Democratic leadership
of the Committee on Transportation and Infrastructure that reported
this bill to the Congress, one of the things that has been debated
hotly about this legislation is the status of the Peotone site in the
State of Illinois.
What I want to use my time today is to point out to Members of this
body that there are three airports involved, O'Hare International
Airport, an airport in Rockford, Illinois, and the airport in Gary,
Indiana, which is in my congressional district. There is a proposed
site in Peotone, Illinois.
The gentleman from Illinois (Mr. Jackson) talked about a potential
racial divide on the Illinois side. I would

[[Page H5120]]

point out that Gary, Indiana's population is 85 percent African
American, and for those African American citizen of Gary, Indiana, the
passage of this legislation is very important for their economic future
because they and their surrounding environs have been decimated because
of the loss of manufacturing jobs.

{time} 1300

We have an existing airport at Gary, Indiana, just as there is one at
Rockford. One of the things that the leaders on the committee took
great pains to do was to ensure that both of those airports, as well as
the proposed Peotone site, are all treated equally. Given that equity
that exists in this bill for those two airports and that proposed site,
I strongly urge support passage of this bipartisan legislation.
Mr. MICA. Mr. Speaker, I yield 3 minutes to the gentleman from
Illinois (Mr. Weller), who has worked to protect the interests of the
Peotone expansion.
(Mr. WELLER asked and was given permission to revise and extend his
remarks.)
Mr. WELLER. Mr. Speaker, today I stand in support of this
legislation. As my colleagues know, I am very disappointed in the
drafting of this legislation, particularly in regards to the south
suburban airport at Peotone. But I believe it is in the best interests
to move this process forward, particularly in the hope that in
conference between the House and Senate, we can improve upon the
language for Peotone.
Air travel is expected to double in the next 10 to 15 years. We need
to expand O'Hare, we need to build Peotone to accommodate the doubling
of air travel. As we know, expanding O'Hare alone will not accommodate
that growth in aviation. We need a south suburban third airport at
Peotone.
The governor and the mayor of Chicago have come to an agreement
regarding the construction of Peotone, as well as expansion of O'Hare,
and this legislation does not fully reflect that agreement, which has
been the concern that I have had. But I spoke with the governor
yesterday personally, and he asked me to support this legislation so it
can move forward and move towards conference. In that spirit, I support
this legislation today.
Let me take a moment to discuss the importance of the south suburban
third airport at Peotone. The south suburban third airport at Peotone
will be a complement to O'Hare. And I will note that while they are
pouring concrete and ripping up concrete, it is difficult to land
airplanes, so we need a third airport to serve while O'Hare is expanded
over the next 10 to 15 years. I would note that the south suburban
third airport can be constructed in 4 to 5 years. It can be constructed
for $500-600 million, compared to $13 billion. And from a local
standpoint, for the 2.5 million of us who reside within 45 minutes of
the Peotone site, it will generate over 200,000 jobs.
Mr. Speaker, we need the south suburban third airport at Peotone to
expand aviation capacity, and I believe by moving this legislation
forward, we can move towards that goal. People often ask what is the
status of the construction of the airport at Peotone. Just recently,
the FAA released their EIS approval of FAA record of decision signing.
They investigated and reviewed seven proposed sites for a third
airport, and they said that the Peotone site is the best one. They gave
their blessing for the State to continue moving forward with what we
call land banking, and the State legislature and the governor have made
the decision to move forward to acquire 4,000 acres of the 24,000
eventually needed for the purpose of land banking. That is an important
step. We need to move this legislative process forward, and while I am
disappointed in this language, I want to make it clear that I was
strongly in opposition to this bill this past week, and should this
bill come back without the provisions that we need to build a south
suburban third airport, I will just as strongly oppose it when it comes
back from the conference.
Mr. KIRK. Mr. Speaker, will the gentleman yield?
Mr. WELLER. I yield to the gentleman from Illinois.
Mr. KIRK. Mr. Speaker, this is a courageous decision by the
gentleman. As a member of the committee and as a supporter of Peotone,
the gentleman has engendered a lot of goodwill and friendship when we
complete the final legislation. My hope is that it will strongly
reflect the full agreement, including the gentleman's provision on
Peotone.
Mr. WELLER. Mr. Speaker, I thank the gentleman and urge Members to
join me in supporting this bill today.
Mr. JACKSON of Illinois. Mr. Speaker, I yield 10 minutes to the
gentleman from Illinois (Mr. Hyde), the distinguished chairman of the
Committee on International Relations.
(Mr. HYDE asked and was given permission to revise and extend his
remarks.)
Mr. HYDE. Mr. Speaker, I hate to disabuse the gentleman from Illinois
(Mr. Weller), but if this expansion goes through, the gentleman will
never see Peotone. We will not need Peotone. We will have all of the
capacity that is needed, 1.6 million airplanes. So while the gentleman
from Illinois (Mr. Weller) hopes and prays that some agreement that has
been made off the record will guarantee some favorable treatment of
Peotone, the best medical advice I can give to the gentleman is not to
hold his breath.
I do not know about others, but I love a mystery; and this bill is as
mysterious as anything Agatha Christie ever wrote.
First of all, why is such a controversial bill being brought under
suspension? What a mystery. Why are the bill's proponents, and I almost
said perpetrators, allergic to debate and amendments? Well, let us be
clear about what this bill seeks to do.
The establishment wants to nearly double the capacity of what is now
the world's busiest airport, O'Hare International, to accommodate 1.6
million flights a year. Who is the establishment? Well, people of
substance in the community: The major Chicago newspapers, the Chamber
of Commerce, the mayor of Chicago, the governor of Illinois, United
Airlines, American Airlines, and so many more that a famous President
once labeled the malefactors of great wealth the establishment. Members
know who they are. They have been besieged by their lobbyists.
Who is the opposition? Thousands of citizens who live and work near
the airport and its present 900,000 flights a year, whose quality of
life will be shattered by doubling the capacity at O'Hare. Those
families whose homes will be condemned and bulldozed, whose businesses
will be plowed under as the airport expands.
Members might say we cannot stand in the way of progress. Of course
not. But O'Hare is landlocked. It is surrounded by vital suburban
communities, many of which I represent. It is saturated with aircraft.
Add to capacity, yes, but do it by building another airport at Peotone,
a modern one that is environmentally friendly and can expand in years
to come. By the time the $15-20 billion, not $6 billion as they
propose, the $15-20 billion is spent on O'Hare, it will be obsolete.
Peotone can be built faster and cheaper than expanding O'Hare.
It makes sense economically and logistically; but the flaw in the
ointment is Chicago would not own Peotone. Therefore, it must not
survive.
There are fundamental constitutional questions with this bill. In the
first place, Chicago has no power or authority to do anything unless
that power has been given to the city by the Illinois General Assembly.
The city is a political subdivision of the State. It is a creature of
the legislature, and its powers are defined and limited by the Illinois
Municipal Code. The Illinois Municipal Code contains the Illinois
Aeronautics Act which forbids anyone from expanding any airport without
a certificate of approval from the Illinois Department of
Transportation. The same limitation applies to the governor. The deal
he made with the city to expand O'Hare is what the lawyers call ultra
vires, beyond his authority. Neither the Federal Constitution nor the
State constitution gives the governor the authority to ignore the
Illinois Aeronautics Act.
If President Bush were to enter into an agreement with Commonwealth
Edison to build a nuclear plant in Illinois, his action would be ultra
vires, without a license from the Nuclear Regulatory Commission. But
that would require full disclosure, something woefully absent from this
O'Hare debate. Does

[[Page H5121]]

anyone supporting this bill think the President has constitutional
authority to enter into an agreement with Exxon to drill in the Alaskan
National Wildlife Refuge without statutory authority from Congress?
The Illinois Aeronautics Act requires a certificate of approval from
the Department of Transportation. The city and the governor proposed to
march ahead, ignoring the law, all to give the city an unfettered right
to condemn all the land they want, sidestepping the Illinois law.
Now let us consider another mystery in this bill. The governor and
the mayor should just ask the Department of Transportation for a
certificate of approval. It is the Illinois DOT. The governor has
peopled it and appointed its chairman. They should just ask that body
for a certificate of approval. If that is what is keeping them from
complying with the law, why not just apply for a certificate?
I asked my dear friend, the gentleman from Illinois (Mr. Lipinski),
at least twice why they have not just asked for a certificate. It is so
simple. The gentleman says he does not know. It is a real mystery.
Well, it finally dawned on me like a ton of fire appearing over my
head why this circuitous route around Illinois law is being employed:
To get a certificate of approval, they would have to disclose what
their real plan is. That is the last thing that they want to do.
Transparency is not in their vocabulary. To apply for a certificate,
they would have to disclose how much this alleged $6.5 billion plan
will really cost. How is it going to be financed? Who is going to pay
the bonds? Will they be paid for by United and American Airlines after
they get their share of the airline bailout? How many acres do they
really plan to condemn? How many homes do they really plan to plow
under? Does this expand the United-American monopoly existing at O'Hare
now? So many questions they would have to disclose, and not to disclose
them is why they are ignoring the law. That is why we should not let
them.
How much corporate welfare are they concealing? What are they hiding?
This is like Enron or WorldCom. What was wrong with them, they did not
disclose the true state of affairs in their corporation, and we have
tired fingers pointing at Enron and Arthur Andersen and WorldCom. Well,
that is what we are doing today. We are giving American and United and
the city of Chicago and the governor a pass on the law having to
disclose what this plan, this massive plan is all about.
Do we encourage nondisclosure? Are we now accessories? Listen,
Republicans are always given the image of being in bed with big
business and Democrats march beside the little guy, the powerless.
Well, this vote, if Members vote yes on this bill, they validate that
they are in bed with big business, and the heck with the little people
whose homes and businesses are going to be wiped out. I do not know how
the Democrats will explain that.
This bill is wired. I know it. I can count. But I would rather be on
the losing side of a good, honest cause than on the winning side of a
cause that hurts vulnerable people.
A famous Russian writer whose name I never knew once wrote that even
if the whole world was paved over, somewhere a crack would appear, and
in that crack a blade of grass would begin to sprout.
So bring on the bulldozers, the cement mixers and shovels, and the
1.6 million roaring airplanes. That blade of grass is the rule of law,
and this fight is far from over.
Mr. LIPINSKI. Mr. Speaker, I yield 3 minutes to the gentleman from
Illinois (Mr. Davis).
(Mr. DAVIS of Illinois asked and was given permission to revise and
extend his remarks.)
Mr. DAVIS of Illinois. Mr. Speaker, the issue of expansion at O'Hare
has been around for a long time and there has been considerable debate.
I want to commend the gentleman from Illinois (Mr. Lipinski) for his
leadership on not only this issue, but other issues surrounding
transportation. Today I stand in firm support of H.R. 3479.
I also want to commend the gentleman from Illinois (Mr. Hyde) for his
efforts to bring a third airport in the Peotone area. Especially,
though, I want to commend the gentleman from Illinois (Mr. Jackson) for
his consistent and eloquent, creative approach to try and develop jobs
and economic opportunity and bring them closer to the people in his
congressional district.
Chicago has a vast and growing transportation industry. Over the
years, Chicago O'Hare International Airport has continued its growth in
traffic and demand.

{time} 1315

Presently, O'Hare ranks as the Nation's first or second busiest
airport at any given time, with nearly 34 million annual passengers
traveling both domestically and internationally.
Expanding O'Hare offers an immediate array of benefits, from
employment to economic growth. And I am pleased to note that the plan
for O'Hare expansion includes a 30 percent goal for minority and women-
owned businesses as opposed to a 10 percent goal in the State's plan
for Peotone.
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 Midwest, these delays continue to burden connecting
airports, creating a snowball effect and frustrating 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 do not believe that this necessitates the idea that there cannot
and will not be a third airport at Peotone, or in that area. As the
time continues to develop, the need will continue to grow. Right now,
though, the greatest need is to expand O'Hare, and I think we will get
to Peotone as time comes.
Mr. MICA. Mr. Speaker, I am pleased to yield 2 minutes to the
gentleman from Illinois (Mr. Manzullo).
Mr. MANZULLO. Mr. Speaker, the National Aviation Capacity Expansion
Act is not just a bill about expanding O'Hare International Airport, it
is about relieving congestion for the entire air transportation system
in the United States, of which obviously O'Hare is an integral part.
I fought hard and testified several times to make sure this bill
includes a provision asking the FAA to consider utilizing existing
airports that are capable of immediately reducing congestion and delays
at our Nation's major airports. In the Chicago region, that airport is
the Greater Rockford Airport. Passage of this legislation ensures that
Rockford Airport will be able to offer its vast resources, which
include:
$150 million of recent infrastructure improvements; a 10,000-foot
runway that can land any jet aircraft today as well as an 8,200-foot
runway; a category III Instrument Landing System; a Glycol Detention
and Treatment Facility; an upgraded taxiway system; an FAA 24-hour
traffic control tower; it is the present home to United Parcel
Service's second largest hub in the Nation; a modern passenger terminal
immediately capable of handling 1 million emplaned passengers annually,
and room for 3 million with a modest investment, and capacity for up to
15 million passengers a year; unconstrained airspace; the ability to
relieve up to 20 percent of O'Hare's originating passengers; and all
only 1 hour's distance from Chicago.
As my colleagues can see, this bill is the best vehicle by which the
Nation's air traffic congestion and delays could be relieved. And
Rockford Airport is ready today; built, paid for, existing. It is
considered, as designated in this legislation, to be a low-cost and
convenient factor in that solution.
I urge my colleagues to vote in favor of this bill.
Mr. JACKSON of Illinois. Mr. Speaker, I yield 2 minutes to the
gentleman from Illinois (Mr. Crane).
(Mr. CRANE asked and was given permission to revise and extend his
remarks.)
Mr. CRANE. Mr. Speaker, I thank the gentleman for yielding me this
time, and, once again, I rise in strong opposition to Federal
legislation that would mandate runway expansion and reconfiguration at
Chicago's O'Hare Airport.
Like most people, I want the air traffic congestion problem at O'Hare
solved as soon as possible, but the plan mandated by this bill will not
accomplish that objective. It is projected to

[[Page H5122]]

take 900,000 flights annually to 1.6 million flights annually.
Moreover, it would be expensive. Very expensive. Its sponsors say the
O'Hare runway plan will cost $6.6 billion to implement, but by the time
the 500 to 600 property condemnations, the two graveyard relocations,
road improvements, soundproofing work, and other items are finished,
the price tag is likely to be double or triple that amount.
Meanwhile, there are four good-sized airports currently in operation
within less than a 100-mile radius of Chicago, Great Rockford Airport
being one, that could handle additional flights, and a fifth could be
built south of the city with less difficulty and for less money than it
would take to add to and reconfigure the runways at O'Hare. Making
greater use of these airports would be a quicker, simpler, and less
expensive option than trying to expand O'Hare's runway capacity.
Also, it would spare thousands of people living and/or working near
O'Hare the consequences of higher noise and air pollution levels,
declining property values, and, in some cases, the loss of their homes
and their jobs.
For their sakes, and for the sake of others who live or work in
places that could suffer a similar fate in the future, I urge my
colleagues to vote ``no'' on this counterproductive and potentially
precedent-setting piece of legislation. We can and should do better.
Mr. LIPINSKI. Mr. Speaker, may I inquire about the amount of time
everyone has left here?
The SPEAKER pro tempore (Mr. Simpson). The gentleman from Illinois
(Mr. Lipinski) has 10 minutes remaining, the gentleman from Illinois
(Mr. Jackson) has 6\1/2\ minutes remaining, and the gentleman from
Florida (Mr. Mica) has 9\1/2\ minutes remaining.
Mr. JACKSON of Illinois. I am sorry, Mr. Speaker, my math is a little
bit different. Since the moment that you yielded me and informed me I
had 22\1/2\ minutes, I yielded 10 minutes to the gentleman from
Illinois (Mr. Hyde) and 2 minutes to the gentleman from Illinois (Mr.
Crane).
The SPEAKER pro tempore. In the gentleman's request to yield 10
minutes to the gentleman from Illinois (Mr. Hyde), did the gentleman
ask that he control the time?
Mr. JACKSON of Illinois. I asked that he have 10 minutes.
The SPEAKER pro tempore. And the gentleman from Illinois (Mr. Hyde)
debated and then yielded back with one minute remaining.
Mr. JACKSON of Illinois. Correct. And at the time I yielded 10
minutes to the gentleman from Illinois (Mr. Hyde) I had 22\1/2\
minutes.
The SPEAKER pro tempore. Did you ask unanimous consent that the
gentleman from Illinois (Mr. Hyde) be able to control 10 minutes?
Mr. JACKSON of Illinois. I asked that the gentleman from Illinois
(Mr. Hyde) have 10 minutes, Mr. Speaker, and then the gentleman from
Illinois (Mr. Crane) had 2 minutes. That should leave me 10 minutes,
Mr. Speaker.
The SPEAKER pro tempore. The gentleman from Illinois (Mr. Hyde) used
9 of the 10 minutes, which is 8\1/2\ minutes remaining, before yielding
to the gentleman from Illinois (Mr. Crane) 2 minutes, and that leaves
6\1/2\ minutes.
Mr. JACKSON of Illinois. I thank the Speaker.
Mr. LIPINSKI. Mr. Speaker, just so we are perfectly clear, I have 10
minutes remaining?
The SPEAKER pro tempore. The gentleman has 10 minutes remaining.
Mr. LIPINSKI. And the gentleman from Illinois (Mr. Jackson) has 6\1/
2\ minutes remaining.
The SPEAKER pro tempore. The gentleman has 6\1/2\ minutes remaining.
Mr. LIPINSKI. And what does the gentleman from Florida (Mr. Mica)
have remaining?
The SPEAKER pro tempore. The gentleman from Florida has 9\1/2\
minutes remaining.
Mr. MICA. Mr. Speaker, just for the information of the House and the
Speaker, I plan to use only 3 minutes of that time because the House
does want to proceed with other business.
Mr. LIPINSKI. Mr. Speaker, I yield 5 minutes to the gentleman from
Minnesota (Mr. Oberstar), the ranking member of the Committee on
Transportation and Infrastructure, a long-time chairman of the
Subcommittee on Aviation.
Mr. OBERSTAR. Mr. Speaker, I thank the gentleman for yielding me this
time, and I rise in support of the National Aviation Capacity Expansion
Act of 2002, and I do so with greatest respect and admiration for the
gentleman from Illinois (Mr. Lipinski) who has labored mightily to
bring together the State of Illinois, the City of Chicago, and a wide
range of interests in the House to support this initiative.
It is unfortunate that we have to do this by legislation, but it is
also unfortunate that historically the City of Chicago and the State of
Illinois have not been able to work together constructively, with
oftentimes the Governor's office countermanding an agreement worked out
between the Mayor and the Governor, as Mayor Daley testified to so
specifically in our committee hearings last year and early this year.
I just want to point out that we are not talking about an ordinary
airport. This is the premier airport in the United States. This is a
treasure for all of world aviation. There is no question that we need
to address the needs of O'Hare; that we, if necessary, as we do in this
legislation, in effect, codify an agreement between the Mayor and the
State of Illinois.
Mr. HYDE. Mr. Speaker, will the gentleman yield?
Mr. OBERSTAR. I yield to the gentleman from Illinois.
Mr. HYDE. The gentleman had one hearing on this bill, did you not?
Mr. OBERSTAR. Reclaiming my time, Mr. Speaker, I believe there were
two hearings
Mr. HYDE. If the gentleman will continue to yield, Mr. Speaker, it is
my understanding that mayors whose towns are going to be affected by
this, and citizens and businessmen were here and were not permitted to
testify. Is that the gentleman's recollection?
Mr. OBERSTAR. That is not my understanding. All that I know who
requested the hearing were accommodated. I am not aware of such. But at
any rate, I have only limited time and perhaps the gentleman can
discuss this on his time with the gentleman from Illinois (Mr.
Lipinski).
Mr. HYDE. We can do this off the record, yes.
Mr. OBERSTAR. Mr. Speaker, it is cities, more than States, that have
advanced the cause of aviation in the United States. Until 1958, there
were only 7 States that provided any support financially for airport
construction and development. In the 1940s, Chicago's city council
looked into the crystal ball, saw the future of aviation and had the
foresight to acquire orchard fields and an additional 7,000 acres to
build this treasure of an airport, O'Hare, that was named for a World
War II hero.
Similarly, LaGuardia was the brainchild of Mayor Fiorello LaGuardia,
who sought to capitalize on the great success of Newark Airport, and
built what was then a treasure on the East Coast. And the same with
Atlanta. Hartsfield Airport was the vision of Alderman and Mayor
William Hartsfield. So we are now dealing with the need to look into
the future of aviation in the United States.
When traffic backs up at O'Hare, it backs up all the way around the
world. Delays at O'Hare affect traffic as far away as Frankfurt, in
Europe, and Tokyo on the Pacific Rim. This legislation, and I have
spent a great deal of time looking at the airport runway
reconfiguration, will allow operations of all weather conditions,
simultaneous operations. It will make possible simultaneous operations
under all but the very worst zero visibility conditions, and that would
be a huge improvement over the existing situation at O'Hare.
There have been allegations about the constitutionality of this
legislative proposal. Last week, during debate, the gentleman from
Illinois (Mr. Jackson) and the gentleman from Illinois (Mr. Hyde) made
references to constitutional issues in a letter written by Professor
Ronald Rotunda of the University of Illinois College of Law. Well, we
have got other experts and other professors who have also reviewed this
letter. We talked to Professor Thomas Merrill, the John Paul Stephens
Professor of Law at Northwestern University, to get his opinion, which
concludes as follows:
``This legislation is squarely within the power delegated to Congress
under

[[Page H5123]]

the commerce clause and relies on familiar precepts of preemption. It
presents no substantial issue under the anti-commandeering principle of
U.S. v. New York.''
Mr. Speaker, I am submitting herewith for the Record the memorandum
provided by Professor Merrill, and the letter of agreement between the
Governor of Illinois and the Mayor of the City of Chicago, testifying
that they have reached an agreement and both do strongly support this
legislation.
State of Illinois,

City of Chicago,

July 22, 2002.
Dear Member of Congress: We want to unequivocally state our
strong support for Representative Bill Lipinski and Mark
Kirk's legislation, H.R. 3479, the National Aviation Capacity
Expansion Act of 2002, which is expected to be on the House
Calendar this week.
This legislation is crucial to the agreement that we, as
Governor of Illinois and Mayor of Chicago, reached to end
decades of debate over the future of airports in the Chicago
area. That debate has choked off necessary improvements to
airport capacity in the region, and led to display and
congestion that have negatively affected the economy of the
region, and rippled through the national aviation system. It
is time to end that debate and move forward.
Passage of this legislation is necessary for us to carry
out this agreement, which will lead to reconfiguration of the
runway system at O'Hare, the reduction of delays, and the
creation of almost 200,000 new jobs in Illinois. It will help
improve the operations of the entire system, reducing delays
around the nation.
The agreement also includes going ahead with work on the
development of a new airport in the southern suburbs of
Chicago, which has been a great importance to not only the
State of Illinois, but to many members of the Illinois
delegation. Passage of this legislation is the best course of
action to help develop a third regional airport in the
southern suburbs.
Let us be clear: failure to pass this legislation will
return us to the political gridlock over airport issues in
the Chicago region that may take decades more to resolve. A
huge economic boost to the State of Illinois, to the Midwest
and to the entire nation will be lost.
We both strongly urge your favorable vote on H.R. 3479.
Thank you.
George H. Ryan,
Governor.
Richard M. Daley,
Mayor.
____

memorandum

To: R. Eden Martin, President, Civic Committee of The
Commercial Club of Chicago.
From: Thomas W. Merrill, John Paul Stevens Professor of Law,
Northwestern University.
Re: Constitutionality of the Durbin-Lipinski Legislation.
Date: April 17, 2002.
This memorandum is in response to your request for an
evaluation of the constitutionality of the National Aviation
Capacity Expansion Act, proposed federal legislation
introduced in the Senate by Senator Durbin (S. 2039) and in
the House by Representative Lipinski (H.R. 3479) (the Durbin-
Lipinski Legislation). This legislation is designed to
facilitate the redesign of Chicago's O'Hare International
Airport in accordance with a plan agreed to by Mayor Richard
Delay of Chicago and Governor George Ryan of the State of
Illinois. The plan would redesign the runways, terminals and
access roads at O'Hare so as to permit this facility, which
is vital to both the national and the regional economy, to
accommodate the existing and anticipated volume of commercial
air traffic in the Chicago area.
In a letter to Representative Henry Hyde dated March 1,
2002, Professor Ronald Rotunda of the University of Illinois
Law School has offered the opinion that the Durbin-Lipinski
legislation is ``most likely unconstitutional.'' (Rotunda
Letter at 16). The provisions he finds constitutionally
problematic are Sec. 3(a)(3), which exempts the O'Hare
redesign project from state permitting requirements, and
Sec. 3(f), which, as it appears in the House bill, provides
that if all state and local approvals are not obtained by
2004, the project shall proceed as a federal project. These
provisions are constitutionally suspect, according to
Professor Rotunda, because they ``conscript the
instrumentalities of state government and state power as
tools of federal power,'' do not constitute ``generally
applicable'' legislation, and ``impose[ ] federal rules on
the relationship between a city and the State that created
the city.'' (Letter at 16.) I have reviewed the authorities
and arguments advanced by Professor Rotunda and conclude that
they raise no substantial question about the
constitutionality of the proposed legislation.

i. the durbin-lipinski legislation represents an exercise of core
federal powers under the commerce clause and pre-empts contrary state
law

No claim has been made by Professor Rotunda, nor could it
be made, that the Durbin-Lipinski Legislation deals with a
subject beyond the scope of Congress's authority under the
Commerce Clause. The Supreme Court, in reviewing the
historical understanding of the Commerce Power, has recently
summarized that Power as falling into three general
categories: (1) regulation of the channels of interstate
commerce, (2) regulation of the instrumentalities of
interstate commerce, and (3) regulation of commercial
activity that in the aggregate has a substantial affect on
interstate commerce. See United States v. Lopez, 514 U.S.
549, 558-59 (1995); United States v. Morrison, 529 U.S. 598,
609-09 (2000). The ``channels of interstate commerce''
include navigable rivers, interstate highways, interstate
rail facilities and terminals--and of course navigable
airspace and airport terminals. See, e.g., Braniff Airways,
Inc. v. Nebraska State Bd. of Equalization, 347 U.S. 590, 596
(1954) (``Federal Acts regulating air commerce are bottomed
on the commerce power of Congress''). Congress thus has
complete and plenary power under the Commerce Clause to
regulate the size, configuration, and operating parameters of
airport facilities that serve as hubs of interstate air
commerce. See, e.g., Northwest Airlines, Inc. v. Minnesota,
322 U.S. 292, 303 (1944) (Jackson, J. concurring) (federal
power over air commerce and air transit is ``exclusive''). It
follows from this that the Durbin-Lipinski Legislation--which
is designed to assure that the Nation's busiest airport
terminal has sufficient capacity to accommodate future growth
in interstate and international air commerce--falls squarely
within the core of congressional power under the Commerce
Clause.
Given that the Durbin-Lipinski Legislation is within
Congress's power to legislate, any contrary provision of
state law is pre-empted. ``[U]nder the Supremacy Clause, from
which our pre-emption doctrine is derived, `any state law,
however clearly within a State's acknowledged power, which
interferes with or is contrary to federal law, must yield.''
Gade v. National Solid Waste Management Ass'n, 505 U.S, 88,
108 (1992) (citation omitted). As the Court noted in Printz
v. United States, 521 U.S. 898, 913 (1997)--one of the
decisions Professor Rotunda relies upon most heavily--``all
state officials'' act under a duty ``to enact enforce, and
interpret state law in such as fashion as not to obstruct the
operation of federal law;'' consequently, ``all state actions
constituting such obstruction, even legislative Acts, are
ipso facto invalid.'' Indeed, ``even state regulation
designed to protect vital state interests must give way to
paramount federal legislation.'' De Canas v. Bica, 424 U.S.
351, 357 (1976).
The Durbin-Lipinski Legislation provides, among other
things, that the State of Illinois ``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 38.01, 47, and 48 of the Illinois Aeronautics
Act.'' H.R. 3479, Sec. 3(a)(3). This provision is obviously
inconsistent with any requirement for state certification of
the O'Hare redesign plan under Sec. 47 of the Illinois
Aeronautics Act or otherwise. Any such state certification
requirement is therefore plainly pre-empted by the Durbin-
Lipinski Legislation.

II. The Durbin-Lipinski Legislation Does Not ``Commandeer'' the State
or Its Officials

Professor Rotunda concludes that the Durbin-Lipinski
Legislation is ``likely unconstitutional'' primarily by
relying on decisions holding that the Commerce Power does not
extend to laws that ``compel the States to enact or
administer a federal regulatory program,'' New York v. United
States, 505 U.S. 144, 188 (1992), or that ``conscript the
States' officers directly'' to administer or enforce federal
law. Printz, supra, 521 U.S. at 935. He argues that the
Durbin-Lipinski Legislation has the effect of ``commanding
and singling out the State of Illinois to, in effect, repeal
its legislation governing the powers delegated to the City of
Chicago.'' (Letter at 14.)
The short answer to this elaborate argument is that the
Durbin-Lipinski legislation does no such thing. I does not
require the State of Illinois or any political subdivision to
enact--or repeal--any legislation. Nor does it conscript
state employees to act as administrators or enforcement
agents of federal law. Instead, the Durbin-Lipinski
Legislation simply preempts provisions of state law that
might serve as an impediment to the completion of the O'Hare
redesign plan. The State is not ordered to take affirmative
steps to aid in the redesign of the airport, either by
legislative or administrative action. It is merely prohibited
from blocking the redesign and reconfiguration of the
airport. This of course is what happens whenever state law is
preempted by federal legislation. See, e.g., City of Burbank
v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973) (local
ordinance governing hours of operation of airport terminal
pre-empted by comprehensive federal regulation of airport
noise).
Absent some provision that directs Illinois to adopt
legislation or regulations, or that commands Illinois
officials or employees to enforce federal law, the Durbin-
Lipinski Legislation raises no issue under New York and
Printz. As the Supreme Court recently (and unanimously) held
in Reno v. Condon, 528 U.S. 141 (2000), where a federal
statute does not require a state legislature ``to enact any
laws or regulations'' and does not ``require state officials
to assist in the enforcement of federal statutes regulating
private individuals,'' the anti-commandeering doctrine of New
York and Printz does not apply. Id. at 151. Condon involved a
federal statute, The Driver's Privacy Protection Act, that
prohibited States from disclosing personal information about
individuals obtained from

[[Page H5124]]

department of motor vehicle records without the individual's
consent. Because the Act did not direct the ``States in their
sovereign capacity to regulate their own citizens,'' id., the
Court found that it was a legitimate exercise of the
Commerce Power and that contrary state legislation was
preempted. The Durbin-Lipinski Legislation likewise
contains no provision that would compel the State or its
agents to regulate the citizens of Illinois.
Nor does the provision of the House bill that calls for the
O'Hare redesign to become a federal project if construction
has not commenced by 2004 raise any commandeering problem.
This is a form of conditional regulation, in which Congress
``offer[s] States the choice of regulating [private] activity
according to federal standards or having state law pre-empted
by federal regulation.'' New York, 505 U.S. at 167. This type
of conditional regulation is often used in environmental
legislation, and the New York Court took pains to reaffirm
its constitutionality. Id; see also Printz, 521 U.S. at 925-
26. Such condition regulation, the Court found, is
constitutionally permissible because it does not represent
direct coercion of State governments in the way that
commandeering does. Section 4(f) of the House bill is of a
similar design. It provides that in the event the
Administrator of the FAA finds that ``a continuous course of
expected to commence by December 1, 2004'' then ``the
Administrator shall construct the runway redesign plan as a
Federal project.'' H.R. 3479, Sec. 4(f). The legislation, in
other words, does not order State and local officials to
issue permits and approvals for construction; it sets a
deadline for obtaining such approvals, and if this is not
met, provides for federal permits and approvals--a classic
form of conditional regulation approved by New York and
Printz.

iii. the durbin-lipinski legislation is not constitutionally infirm
because it applies to a single airport

Professor Rotunda also seeks to rely on language in New
York and Condon that distinguishes impermissible
commandeering statutes from laws ``that subject state
governments to generally applicable laws.'' New York, 505
U.S. at 160; Condon, 528 U.S. at 151. He notes that the
Durbin-Lipinski Legislation applies to only one airport and
in this sense is not a ``generally applicable'' law, thus, he
suggests, the legislation is unconstitutional under New York
and Prinitz.
This argument, however, reflects misapplication of the
``generally applicable laws'' exception recognized in New
York and Condon. The exception applies only to federal laws
that otherwise compel a State to enact legislation or
conscript state employees to enforce federal law. If a
federal law has this ``commandeering'' effect, then it may
nevertheless be upheld as constitutional if it is a
``generally applicable law'' that applies to state
governments and private persons alike. Thus, for example, the
Fair Labor Standards Act (FLSA), as amended, applies to state
and local governments as well as to private employers. This
statute requires state governments to enact laws or
regulations (e.g., setting wages and hours of state
employees), and it requires state officers and employees to
administer federal law (e.g., determining that all units of
state government are in compliance with federal standards).
Yet the constitutionality of the FLSA as applied to state
governments was upheld in Garcia v. San Antonio Metropolitan
Transit Auth., 469 U.S. 528 (1985). The Court in New York
reconciled this result with the anti-commandeering
principle by noting that the FLSA is a generally
applicable law that governs state and private employers
alike. New York, 505 U.S. at 160-61.
Properly understood, therefore, the generally applicable
laws exception has no relevance to the Durbin-Lipinski
Legislation. The Durbin-Lipinski Legislation does not compel
the State to enact any laws or regulations, and does not
conscript state employees to administer any federal law.
Instead, it is a narrow preemption statute. As such, the
anti-commandeering principle of New York and Printz does not
apply at all, and hence the generally applicable laws
exception does not apply at all.
Outside the commandeering context, there is no principle of
law that condemns congressional legislation under the
Commerce Clause because it proceeds project-by-project rather
than under generally applicable laws. Congress has often
legislated under the Commerce Clause by addressing particular
obstructions of commerce, whether they be inadequate harbor
facilities, impassive on rivers, or bottlenecks in the
interstate highway system. For example, Congress has
legislated with respect to a single bridge spanning a
navigable river, and this has been sustained as a valid
exercise of the Commerce Power. See Pennsylvania v. Wheeling
and Belmont Bridge Co., 59 U.S. (18 How.) 421, 431 (1855).
Similarly, federal agencies exercising delegated power under
the Commerce Clause, such as the Army Corps of Engineers and
the FAA, commonly and properly focus their attentions on
particular obstructions of commerce, rather than proceeding
by promulgating general regulations. That is all Congress has
done here, by legislating to assure that a critical airport
that serves as a central hub of the entire air traffic system
of the United States does not become an impediment to the
free flow of interstate and international commerce.

iv. the durbin-lipinski legislation does not impermissibly interfere
with relations between a state and its political subdivisions

Finally, Professor Rotunda suggests in passing (Letter at
7) that the Durbin-Lipinski legislation violated some general
principle of federalism that requires Congress to afford a
state government complete and unlimited control over the
powers and duties of its political subdivisions. The decision
he cites in support of this proposition, Hunter v. City of
Pittsburgh, 207 U.S. 161 (1907), held no such thing. Instead,
the Court merely rejected the claim of the City of Pittsburgh
that a Pennsylvania law directing the annexation of
Pittsburgh and another city over the objection of a majority
of the Pittsburgh electorate violated Pittsburgh's rights
under Fourteenth Amendment's Due Process Clause. It was in
this context that the Court said that the ``number, nature,
and duration of the powers conferred upon'' a municipal
corporation ``rests in the absolute discretion of the
state.'' Id. at 178. No issue was presented in the case about
the authority of Congress to deal directly with municipal
corporations--as it often deals directly with other types
of corporations--in the implementation of otherwise valid
federal legislation.
In fact, Congress has long dealt directly with
municipalities in a variety of contexts, and the federal
courts have uniformly rejected challenges to these measures
based on the notion that the federal government must always
defer to state-law limitations on municipal powers. Lawrence
County v. Lead-Deadwood School District, 469 U.S. 256 (1985),
for example, involved a federal statute that provided
payments in lieu of taxes to a county based on the presence
of tax-exempt federal land in the county. The federal statute
gave the county discretion to allocate funds for ``any
governmental purpose.'' Id. at 258. A South Dakota statute,
however, provided that all in lieu payments be allocated in
the same ratio as the county's general tax revenues were
allocated. By a vote of 7-2, the Supreme Court held that the
federal statute preempted the allocation requirement in the
state statute, and specifically rejected the contention based
on the language in Hunter that this constituted impermissible
interfence with state control over its political
subdivisions, Id. at 269; cf. id. at 270-71 (Rehnquist, J.
dissenting (quoting Hunter)).
The same conclusion has been reached when the federal
government has given regulatory permission to political
subdivisions to take action contrary to state law. In one
case the Federal Power Commission issued a license to the
City of Tacoma, Washington, to build a hydroelectric dam on
the Cowlitz River. An agency of the State of Washington
opposed the license, and argued that Washington statutes
required the City to obtain permission from the State. The
United States Court of Appeals for the Ninth Circuit held
that the case presented a simple matter of federal supremacy:
State law cannot interfere with the ability of a federal
licensee to exercise the rights provided by a federal license
on a navigable waterway. State of Washington Dept. of Game v.
Federal Power Comm., 207 F.2d 396 (9th Cir. 1953). The court
agreed that the City was a creature of the State and normally
could not act without authorization of state law. But private
licensees--such as corporations and electrical cooperatives--
are also creatures of state law, and it is well-established
that they can invoke federal law to preempt state law
inconsistent with a federal license. See First Iowa Hydro-
Electric Coop. v. Federal Power Comm., 328 U.S. 152 (1946).
The court reasoned that municipal corporations are no
different in this regard, and they too may be empowered by
the federal government to take action affecting the channels
of interstate commerce without regard to limitations
contained in state law. The Washington Supreme Court later
disagreed with this ruling, see City of Tacoma v. Taxpayers
of Tacoma, 307 P.2d 567 (Wash. 1957), but the U.S. Supreme
Court reversed, holding that the decision of the Ninth
Circuit was res judicata. See City of Tacoma v. Taxpayers of
Tacoma, 357 U.S. 320 (1958).
Similiarly, in a controversy closely analogous to the
instant matter, the City of New Haven, Connecticut received a
$750,000 grant from the Federal Aviation Administration for
extension of an airport runway. Pursuant to agreements
between the City and the FAA, the City was required to
purchase land in the neighboring town of East Haven in order
to provide an expanded ``clear zone'' for takeoffs and
landings. When neighbors objected and instituted actions in
state court seeking to block the project on the ground that
New Haven's purchase of land in East Haven violated state
law, the United States sought and obtained a preliminary
injunction against further state-court litigation. In
affirming the injunction, the United States Court of
Appeals for the Second Circuit observed that ``[i]n the
case of a clash between federal legislation and state
orders in the area of air commerce, it is clear that under
the doctrine of federal supremacy and the commerce
clause'' the United States would likely prevail on the
merits. See United States v. City of New Haven, 447 F.2d
972, 973-74 (2d Cir. 1971) (citations omitted).
There are, to be sure, constitutional questions about how
far the federal government may go in bypassing state
governments and dealing directly with municipalities and
other subdivisions of a State. The Washington Supreme Court
in the Tacoma dam controversy thought that the federal
government could not confer the power of eminent domain on a
municipality in circumstances

[[Page H5125]]

where such power is not given by state law. City of Tacoma,
307 P.2d at 576-78, rev'd on other grounds, 357 U.S. 320. And
although the Supreme Court has held that a federal district
court in implementing a desegregation decree may issue an
order pre-empting state tax limitations in order to permit a
city to raise taxes, it has reserved judgment as to whether
it would be constitutional for such a court directly to order
a city to raise taxes. Missouri v. Jenkins, 495 U.S. 33, 50-
51 (1990).
But the Durbin-Lipinski Legislation raises none of these
unresolved questions. Section 3(a)(3) in both bills simply
pre-empts state certification requirements that might act as
an impediment to the City's execution of the redesign plan
using its otherwise-existing delegated and home-rule powers
under state law. And Sec. 3(f) of the House bill provides
that if the O'Hare redesign project becomes a federal
project, either the City will exercise its existing eminent
domain power or the FAA will use its federal eminent domain
power to acquire needed land. See H.R. 3479, Sec. 3(f)(1) (E)
& Sec. 3(f)(3). Nor is there any suggestion in this bill that
Congress has authorized the City to exercise powers of
taxation beyond those it already enjoys under state law. See
id. Sec. 3(f)(1)(F) (``the costs of the runway redesign plan
will be paid from the sources normally used for airport
redevelopment projects of similar kind and scope'').

Conclusion

The Durbin-Lipinski Legislation is squarely within the
power delegated to Congress under the Commerce Clause and
relies on familiar precepts of pre-emption. It presents no
substantial issue under the anti-commandeering principle of
United States v. New York and Printz v. United States. Nor
does it attempt to intrude upon State-municipality relations
in a manner that is constitutionally problematic. The
proposed legislation addresses a matter of vital national
importance in a manner that is minimally intrusive to the
legitimate interests of the State as sovereign, and is
therefore fully constitutional.

Parliamentary Inquiry

Mr. JACKSON of Illinois. Mr. Speaker, I feel compelled at this time
to ask a parliamentary inquiry about my time. The reason I need to ask
the parliamentary inquiry is that there have been three speakers for
those of us who have been opposed to the legislation.
The debate began with 20 minutes on each side, and then there was a
unanimous consent for an additional 10 minutes, which should have left
me with 30 minutes on my side and 30 minutes on the other side of this
legislation. I have yielded 10 minutes to the gentleman from Illinois
(Mr. Hyde), and you said he spoke for 9\1/2\ minutes and yielded back
the balance of his time. I yielded 2 minutes to the gentleman from
Illinois (Mr. Crane), and I made an opening statement.
I do not know how long my opening statement was, but I do not believe
it left me 6\1/2\ minutes.
The SPEAKER pro tempore. The gentleman from Illinois (Mr. Jackson)
made an opening statement of 7\1/2\ minutes, leaving 12\1/2\ minutes.
Thereon the time was expanded by 10 minutes per side, leaving the
gentleman 22\1/2\ minutes. The gentleman then yielded 5 minutes to the
gentleman from Illinois (Mr. Lipinski), leaving him 7\1/2\ minutes.
Mr. JACKSON of Illinois. No, sir. No, sir, I did not yield 5 minutes
to the gentleman from Illinois (Mr. Lipinski).

{time} 1330

The time of the gentleman from Illinois (Mr. Lipinski) is controlled
by the chairman, sir. I am in opposition to the bill. They divided time
amongst themselves. Ten minutes additional on each side, sir, should
have left me with 22\1/2\ minutes. I yielded 10 minutes to the
gentleman from Illinois (Mr. Hyde), and I yielded 2 minutes to the
gentleman from Illinois (Mr. Crane), which should leave me with 10
minutes.
The SPEAKER pro tempore (Mr. Simpson). The gentleman did not make a
unanimous consent request that the gentleman from Illinois (Mr.
Lipinski) control 5 minutes?
Mr. JACKSON of Illinois. No, sir. The gentleman from Illinois (Mr.
Lipinski) made a unanimous consent request that 10 minutes be increased
on each side and there was no objection, 10 minutes for that side and I
am the other side.
The SPEAKER pro tempore. The Chair will subtract 5 minutes from the
gentleman from Illinois's (Mr. Lipinski) side that apparently the
gentleman from Illinois (Mr. Jackson) did not yield to him, which means
that the gentleman from Illinois has no time remaining.
Mr. LIPINSKI. How much time do I have?
The SPEAKER pro tempore. The gentleman has no time remaining now.
Mr. LIPINSKI. That is not right, Mr. Speaker. If I may say, before my
10 minutes was used at all, my request was for an additional 10 minutes
for the gentleman from Illinois (Mr. Jackson), an additional 10 minutes
for the gentleman from Florida (Mr. Mica), which he would yield 5
minutes to me, thereby giving me 15 minutes.
To the best of my recollection, I gave 2 minutes to the gentleman
from Indiana (Mr. Visclosky), 3 minutes to the gentleman from Illinois
(Mr. Davis), and 5 minutes to the gentleman from Minnesota (Mr.
Oberstar). That is 10 minutes, which means I have 5 minutes remaining.
The SPEAKER pro tempore. Let the chair get this straight.
The gentleman's 5 minutes was taken out of the gentleman from
Florida's (Mr. Mica) time. Of the 10-minute expansion, 5 went to the
gentleman from Illinois (Mr. Lipinski), 5 went to the gentleman from
Florida (Mr. Mica), and 10 went to the gentleman from Illinois (Mr.
Jackson).
Mr. LIPINSKI. Correct.
The SPEAKER pro tempore. The gentleman from Florida (Mr. Mica) has
4\1/2\ minutes remaining, the gentleman from Illinois (Mr. Jackson) has
11\1/2\ minutes remaining, and the gentleman from Illinois (Mr.
Lipinski) has 5 minutes remaining.
Mr. JACKSON of Illinois. Mr. Speaker, I yield myself 4\3/4\ minutes.
(Mr. JACKSON of Illinois asked and was given permission to revise and
extend his remarks.)
Mr. JACKSON of Illinois. Mr. Speaker, I have not often come to the
floor of this Congress to talk about the racial divide in the city of
Chicago; but when I do, it is very serious business because I do not
want to take lightly the implications of what Members of Congress are
going to vote on today. This bill will greatly exacerbate what the New
York Times has referred to as the most segregated city in Chicago. I
guess, Mr. Speaker, I want to draw the relationship with this chart
between those comments and what the demographic shifts are actually
showing in Chicago.
When John F. Kennedy inaugurated O'Hare Airport in the early sixties,
you see that the center of economic activity in this first map is in
central downtown Chicago. As a result of O'Hare Airport and our economy
moving from an industrial-based economy to a service-based economy, we
see tremendous economic growth by 1980 in the northwestern suburban
area. In the meantime, the south side of Chicago and the south suburbs
is experiencing zero to negative growth.
By 1990, O'Hare Airport, well into Du Page County, Kane County,
McHenry County, and Lake County, Illinois, end up being responsible,
for every three jobs that exist in our area, three of them can be found
in the northwestern suburbs per one person. Under a build scenario for
the south suburban airport, which is why I am here, the Second
Congressional District of Illinois extends from 71st and Yates all the
way to Will County, to the county line and just beyond the county line.
The south suburban airport under a 2020 build scenario allows the
balancing of growth between the northwest suburban areas and the south
suburban areas, with Chicago being the overwhelming beneficiary of that
balanced economic growth. Without that airport, under a 2020 no-build
scenario, south Cook County becomes increasingly reliant upon
government services, welfare, various forms of section 8 housing, and
other programs.
And so when we debate aviation capacity and the opportunity to expand
aviation in northeastern Illinois and build an airport on the south
side of Chicago and the south suburbs, Mr. Speaker, it is our goal to
solve a longstanding problem. Consistent with the gentleman from
Indiana (Mr. Visclosky), I too support modernization at Gary Airport. I
do support modernization at Rockford Airport. But, Mr. Speaker, the
deal between the Governor of the State of Illinois and the mayor of the
city of Chicago was to add priority status to the building of a south
suburban airport in Peotone, Illinois.
This legislation does not reflect that deal. That deal is better
reflected by the Senate version of the bill offered by Mr. Durbin where
the Peotone language is given priority status. And so why the gentleman
from Illinois (Mr. Lipinski) stands here, my good friend,

[[Page H5126]]

and advocates that this bill is reflective of the deal but removes the
priority status that by 2020 will alleviate the racial, social and
economic tensions that exist in our region is a factor is why some of
us are so adamantly opposed to O'Hare expansion without building this
south suburban airport at least first and as a priority.
I agree that there must be some modernization at O'Hare Airport. I
disagree that we must tear up five runways at O'Hare and build an
additional eight runways at O'Hare Airport as the solution. This area
already has sufficient economic activity and jobs. Bring jobs and
growth to the south side of Chicago that only a service-based economy
can build.
Mr. Speaker, it is not just about airports. With airports come Hyatt
and Hilton and Fairmont and UPS and Federal Express and every other
ancillary business that requires moving cargo in and out of aviation
facilities. Those jobs are badly needed not just in the northwest
suburbs. They are also needed on the south side of Chicago and in the
south suburbs. That is why bringing this bill to the floor in regular
order, allowing those of us who have been advocating for this bill and
advocating for expansion of aviation capacity in the regular order that
we might amend it and ensure that our interests are protected is a
factor is why we are disappointed and many of us, namely myself I know
for a fact, are going to vote against this bill.
Certainly the gentleman from Illinois (Mr. Weller) says that he hopes
these issues will be worked out in conference. Mr. Speaker, the mayor
of the city of Chicago's father wanted to expand aviation capacity by
building a third airport on Lake Michigan. The mayor himself wanted to
build one in Lake Calumet. Only when the idea came about to build it in
south suburban Peotone where he did not control it did he oppose it.
And so, Mr. Speaker, I am asking for the justice of this House to
vote down this bill because it is controversial, and it has
implications 20 years from now for the quality of life for people that
I represent. Give us a chance to offer amendments in the regular order
and not on suspension.
Mr. Speaker, I reserve the balance of my time.
Mr. LIPINSKI. Mr. Speaker, may I inquire how much extra time the
gentleman from Illinois (Mr. Jackson) used there?
The SPEAKER pro tempore. The gentleman has 6\3/4\ minutes remaining.
Mr. LIPINSKI. You were very generous to him.
Mr. Speaker, I yield 30 seconds to the gentleman from Illinois (Mr.
Gutierrez).
Mr. GUTIERREZ. Mr. Speaker, I want to come to say that the gentleman
from Illinois (Mr. Hyde) and the gentleman from Illinois (Mr. Jackson)
have done a wonderful job. Obviously, people underestimated their
ability last Monday. No one is underestimating their ability today. We
have done the work that is necessary in order to expand O'Hare. We feel
that it is necessary.
Last week, one of the Hispanic Members voted against the bill because
some people were saying that Hispanics were going to be hurt by this
expansion of O'Hare. Today we have a commitment of all of the Hispanic
Members of this Congress to vote for the bill, including myself, who is
present today to vote for this bill.
We will not underestimate it. We know the quality of your arguments
and the commitment that you have. Please understand that this is a
gentlemen's disagreement. We respect and love you both very, very much.
Mr. JACKSON of Illinois. Mr. Speaker, I am honored to yield 3\1/4\
minutes to the distinguished gentlewoman from California (Ms. Waters),
who has an issue at Los Angeles International Airport.
Ms. WATERS. I would like to thank the gentleman from Illinois for
yielding this time to me.
Mr. Speaker, I rise to oppose H.R. 3479, the National Aviation
Capacity Expansion Act, which would expand the size of Chicago O'Hare
International Airport and undermine the rights of States and local
communities to make decisions regarding local airport development.
O'Hare expansion would destroy approximately 1,500 homes and
exacerbate the pollution, traffic congestion and noise endured by
residents who live near the airport and north of Chicago. O'Hare
expansion is also opposed by residents of the south side of the Chicago
region, because it would make the construction of a third regional
airport virtually impossible. O'Hare expansion would deny the people
who live on the south side of the Chicago region any opportunity to
enjoy the economic benefits of having access to a local airport.
H.R. 3479 would set a dangerous precedent by allowing the Federal
Government to preempt State and local laws that could limit airport
expansion. Such a precedent could prevent the people of southern
California from developing a regional solution to our region's aviation
needs. The people of my congressional district in southern California
are already overburdened by the noise, pollution, and traffic
congestion generated by Los Angeles International Airport. Other
communities in southern California would like to attract service to
their local airports. Legislation to impose LAX expansion would
undermine southern California's efforts to ensure that the benefits and
burdens of airport development are fairly distributed throughout our
region.
Last week I introduced H.R. 5144, the Careful Airport Planning for
Southern California Act, known as the CAP Act. The CAP Act would cap
LAX air traffic at its current capacity of 78 million passengers per
year and would encourage airport development in southern California
communities that actually want airport development.
I urge my colleagues to support the CAP Act and oppose the expansion
of Chicago O'Hare and LAX.
Mr. Speaker, I join this debate because there is nothing worse than
having the folks sit in Washington override the people in local
communities and in the States, telling them what is best for them when
in fact the people have a right to make those decisions in their own
regions and in their own communities. I respect the right of the people
of the south side of Chicago to talk about what is in the best
interests of their area, of that region. If we are sincere about not
trying to override local control, we will not allow this to happen.
I would ask my colleagues to please oppose H.R. 3479. Someday it may
happen to you in your area, in your region; and you would not want the
Federal Government to put its foot on your hand and tell you what you
can or cannot do.
Mr. LIPINSKI. Mr. Speaker, could I have a breakdown on how much time
everybody has left?
The SPEAKER pro tempore. The gentleman from Illinois (Mr. Lipinski)
has 4\1/2\ minutes remaining, the gentleman from Illinois (Mr. Jackson)
has 3\1/2\ minutes remaining, and the gentleman from Florida (Mr. Mica)
has 4\1/2\ minutes remaining.
Mr. LIPINSKI. Mr. Speaker, I yield myself 2\1/2\ minutes.
First of all I would like to submit my printed statement for the
Record, and then I would like to go into a couple of points that have
been raised here on the floor.
LAX. That was a wonderful speech by the gentlewoman from California
(Ms. Waters), but it has nothing to do with this situation whatsoever.
The State of Illinois is the only State in the Union where the Governor
has veto power over the construction of a new airport or a new runway.
The Illinois channeling laws have strictly to do with the Illinois
Department of Transportation and the Governor, as the gentleman from
Illinois (Mr. Hyde) has stated, appoints all the people in charge of
the Illinois Department of Transportation. So the LAX situation has
nothing to do with, and it is not precedent-setting whatsoever as far
as this legislation we have here.

{time} 1345

The gentleman from Illinois (Congressman Hyde) has asked me a number
of times why the City of Chicago did not ask the Illinois Department of
Transportation for a certificate of approval. I now have the answer for
the congresswoman. In order to get a certificate for the Illinois
Department of Transportation, it takes over a year. Unfortunately
Governor Ryan would no longer be in office at the end of that time. A
new governor could simply take that report because he has the arbitrary
veto power and chuck it out

[[Page H5127]]

the window and say we are going to keep the gridlock in the Midwest in
aviation.
The gentleman from Illinois (Congressman Jackson) talks about
Peotone. There is nothing in whatsoever in this legislation that stops
Peotone from being built. What this legislation does not do, though, it
does not reach out from Washington, D.C. and say we have to build
Peotone. It is entirely left up to the State of Illinois. And it does
not give high priority to Peotone because if we did that, every airport
in the country would be rushing here to get exactly the same status. We
do not even do that for O'Hare Airport in this legislation. O'Hare has
to be improved in its modernization and expansion by the FAA before it
becomes Federal law.
Mr. Speaker, I thought my time might have expired. I will be back
shortly.
Mr. JACKSON of Illinois. Mr. Speaker, I just have one final speaker;
so we will continue to reserve the balance of our time if that is okay.
The SPEAKER pro tempore (Mr. Simpson). Who yields time?
Mr. LIPINSKI. Mr. Speaker, since our side has time to close, I
reserve the balance of my time.
Mr. JACKSON of Illinois. Mr. Speaker, the gentleman from Florida (Mr.
Mica) has the right to close. The gentleman from Illinois (Mr.
Lipinski) needs to exhaust the balance of his time and then we will
exhaust the balance of ours and we will give it to the gentleman from
Florida (Mr. Mica).
Mr. LIPINSKI. Mr. Speaker, is that the ruling of the Chair?
The SPEAKER pro tempore. It is.
Mr. LIPINSKI. Could I inquire to have a Parliamentary inquiry on why,
since I have part of the gentleman from Florida's (Mr. Mica) time, I
should not be able to come just before he closes?
The SPEAKER pro tempore. The original time is controlled by the
gentleman from Florida (Mr. Mica) and the gentleman from Illinois (Mr.
Jackson); the reverse order of opening.
Mr. LIPINSKI. Mr. Speaker, I yield myself the balance of my time.
Let us see something else that has been brought up here. Competition.
The gentleman from Illinois (Mr. Hyde) talked about the competition. We
are going to have more gates at new modernized O'Hare Airport. In the
agreement, Delta Airlines, Northwest Airlines, a number of airlines
that now utilize O'Hare but feel that they are restricted because of
the size of O'Hare will have a much greater opportunity to get gates,
to get landing slots so that there will be significantly more
competition at O'Hare.
Another point I would like to bring up is that this is really a very
bipartisan piece of legislation. Not only do we have support from the
Republican side and the Democratic side, but beyond this Chamber, five
secretaries of Transportation enthusiastically support this
legislation, and these are appointees both on the Democratic side and
from the Republican side. Two of them that I could name right here,
Secretary Slater, Secretary Skinner. People support this not only
because it is necessary to break the gridlock at O'Hare for benefit of
the American aviation flying public, but it will also create 195,000
jobs, and those jobs are not going to just go to people on the
northwest side of the city of Chicago. They are going to go to people
within the city of Chicago, within Cook County, within the counties
that surround Cook County. This is job creation. This is economic
development at the highest possible level, and on top of all that, once
again I say to you there is nothing in this legislation that stops the
State, rural county, or anyone else from building Peotone.
Mr. JACKSON of Illinois. Mr. Speaker, I yield myself 1\1/2\ minutes.
Mr. Speaker, this is a Rand McNally map of Chicago. It is called the
Rand McNally Chicago Easy Finder Map. And in this map it has all of the
northwest suburbs in it, it has most of the city of Chicago, it has
some of the southwest suburbs, but it stops here at 55th Street, right
here at the Museum of Science and Industry. My district does not even
start until 71st Street, and then it proceeds almost 40 miles outside
the city of Chicago.
Mr. Speaker, it is as if the city of Chicago stops right there where
all of the tourists and where all of the economic activity is without
any consideration of the south suburbs.
Mr. Speaker, I brought with me some of the many books that document
the damaging effects of Chicago's persistent disparities between north
and south. Let me read a passage of just one of these titled When Work
Disappears by noted University of Chicago and Harvard University
Professor William Julius Wilson. Professor Wilson writes, ``Over the
last two decades, 60 percent of the new jobs created in the Chicago
metropolitan area have been located in northwest suburbs of Cook and
DuPage County surrounding O'Hare Airport. African-Americans constitute
less than 2 percent of the population in these areas.'' He concluded,
``The metropolitan black poor are becoming increasingly isolated.''
Let us not add to this hefty volume. Let us not continue to
perpetuate and exploit this divide. Let us regulate all of these books
to the history section and begin our own new chapter of balanced
economic growth and justice in Chicago.
Mr. Speaker, I urge a no vote on this bill. It is an unprecedented
act that undermines our State's ability to determine our State's
future.
Mr. Speaker, I include for the Record the following remarks:
Mr. Speaker, I rise in opposition to H.R. 3479.
Votes on the suspension calendar are supposed to be, by definition,
non-controversial. But to argue that H.R. 3479 is non-controversial is
like arguing that the elimination of estate taxes, gun control
legislation, a patients bill of rights, and prescription drug benefits
for seniors should all be on the suspension calendar. H.R. 3479 is one
of the most controversial bills to come before the House this year. It
has been extremely controversial in Chicago, in the northwest suburbs,
in Illinois generally, in the Illinois congressional delegation(our two
U.S. Senators are divided over it), in all House and Senate Committees,
in the full Senate, and, if a full debate were held on the House floor
today, the nation would see just how controversial this bill is.
This bill has already been delayed in the Senate with one virtual
filibuster--and it will be subjected to every parliamentary and
tactical maneuver possible to try to stop it when it comes before the
senate again. Hardly non-controversial!
To tear down and rebuild O'Hare will cost taxpayers three times as
much money as it will cost to build a third South Suburban airport--
$15-20 billion (not the $6.6 billion generally used) versus $5-7
billion. This bill is hardly non-controversial for taxpayers!
Tearing down and rebuilding O'Hare is estimated to take 15-20 years,
assuming ti proceeds on schedule, without lawsuits--not likely--while
building a new South Suburban Airport would take five years, it would
expand thereafter as need arises, and would be a more permanent
solution to the capacity crisis. When the new O'Hare is completed, we
will be in the same position we are today with regard to the air
capacity crisis. How is that not controversial?
This bill will double the noise pollution in the suburban communities
surrounding O'Hare. It is hardly non-controversial in the polluted
northwest suburbs of Chicago.
Doubling the traffic in the air space around O'Hare from 900,000 to
1.6 million operations will make flying into O'Hare less safe for the
public--hardly noncontroversial for the flying public.
This bill will increase environmental pollution--O'Hare is already
the number one polluter in Illinois--hardly non-controversial for those
having to live in the increased pollution.
The Chicago Tribune won a Pulitzer Prize for documenting ``sleaze''
surrounding the City of Chicago and past O'Hare construction, vender,
and service contracts. By passing this bill--and removing the Illinois
Aeronautics Law and by-passing the Illinois General Assembly--we are
virtually sanctioning more ``sleaze'' to be found around O'Hare
construction, vender, and service contracts. Since when has such
potential ``sleaze'' become non-controversial for Congress.
I don't consider the Federal Government running over any future
Governor of Illinois, the Illinois General Assembly, the Illinois
Aeronautics Law, and the 10th Amendment of the U.S. Constitution--to
build an airport--non-controversial.
Finally, we're already finding out how controversial this bill is as
Judge Hollis Webster on July 9, 2002, stopped the City of Chicago from
running rough-shod over their northwest suburban neighbors by illegally
trying to buy up and tear down their homes and businesses to make room
for O'Hare expansion. This is just one of many controversial lawsuits
that have been and will be filed in the future if this bill passes and
becomes law.

[[Page H5128]]

How is tearing down and rebuilding O'Hare--which will be three times
as expensive, take three times longer, be less protective of the
environment, make the skys less safe, and be a less permanent solution
than building a third airport--non-controversial? I say, solve the
current air capacity crisis by building Peotone first, faster, cheaper,
and safer, then evaluate what needs to be done with O'Hare.
H.R. 3479 fall woefully short of providing an adequate, equitable
solution.
Please know that I do not oppose fixing the current air capacity
crisis surrounding O'Hare. But I have many, many grave concerns about
this specific expansion plan. Concerns about cost. About safety. About
environmental impact. About federal precedence--and I associate myself
completely with the remarks of my good friend, Mr. Hyde.
Although I oppose this bill for many reasons, I rise today to discuss
an important element of this bill--constitutionality.
The attempt to rebuild and expand O'Hare Airport--Congress is
inappropriately violating the Tenth Amendment.
In other contexts--specifically with regard to certain human rights--
I believe that the Tenth Amendment serves to place limitations on the
federal government with which I disagree. Indeed, in the area of human
right, I believe new amendments must be added to the Constitution to
overcome the limitations of the Tenth Amendment. However, building
airports is not a human right. Therefore, in the present context, I
agree that building airports is appropriately within the purview of the
states.
I believe attempts by Congress to strip the authority of Governor
Ryan and the Illinois Legislature over the delegation and authorization
to Chicago of state power to build airports--along with the authority
of governors and state legislatures in a host of other states such as
Massachusetts (Logan), New York (LaGuardia and JFK), New Jersey
(Newark), California (San Francisco airport), and the State of
Washington (Seattle)--raise serious constitutional questions.
Under the framework of federalism established by the federal
constitution, Congress is without power to dictate to the states how
the states delegate power--or limit the delegation of that power--to
their political subdivisions. Unless and until Congress decides that
the federal government should build airports, airports will continue to
be built by states or their delegated agents (state political
subdivisions or other agents of state power) as an exercise of state
law and state power. Further compliance by the political subdivision of
the oversight conditions imposed by the State legislature as a
condition of delegating the state law authority to build airports is an
essential element of that delegation of state power. If Congress strips
away a key element of that state law delegation, it is highly unlikely
that the political subdivision would continue to have the power to
build airports under state law. The political subdivision's attempts to
build runways would likely be ultra vires (without authority) under
state law.
Under the Tenth Amendment and the framework of federalism built into
the Constitution, Congress cannot command the States to affirmatively
undertake an activity. Nor can Congress intrude upon or dictate to the
states, the prerogatives of the states as to how to allocate and
exercise state power--either directly by the state or by delegation of
state authority to its political subdivisions.
As states by the United States Supreme Court:

[T]he Framers explicitly chose a Constitution that confers
upon Congress the power to regulate individuals, not States.
. . . We have always understood that even where Congress has
the authority under the Constitution to pass laws requiring
or prohibiting certain acts, it lacks the power directly to
compel the States to require or prohibit those acts. New York
v. United States, 505 U.S. 144, at 166 (1992) (emphasis
added)
It is incontestable that the Constitution established a
system of ``dual sovereignty.'' Printz v. United States, 521
U.S. 898, 981 (1997) (emphasis added)

Although the States surrendered many of their powers to the
new Federal Government, they retained ``a residuary and
inviolable sovereignty,'' The Federalist No. 39, at 245 (J.
Madison). This is reflected throughout the Constitution's
text.

Residual state sovereignty was also implicit, of course, in
the Constitution's conferral upon Congress of not all
governmental powers, but only discrete, enumerated ones, Art.
I, Sec. 8, which implication was rendered express by the
Tenth Amendment's assertion that ``[t]he powers not delegated
to the United States by the Constitution, nor prohibited by
it to the States, are reserved to the States respectively, or
to the people.'' Id at 918-919.
This separation of the two spheres is one of the
Constitution's structural protections of liberty. ``Just as
the separation and independence of the coordinate branches of
the Federal Government serve to prevent the accumulation of
excessive power in any one branch, a health balance of power
between the States and the Federal Government will reduce the
risk of tyranny and abuse from either front. Id at 921
quoting Gregory v. Ashcroft, 501 U.S. 452 at 458 (1991)

The Supreme Court in Printz went on to emphasize that this
constitutional structural barrier to the Congress introducing on the
States' sovereignty could not be avoided by claiming either (a) that
the congressional authority was pursuant to the Commerce Power and the
``necessary and proper clause of the Constitution or (b) that the
federal law ``preempted'' state law under the Supremacy Clause. 521
U.S. at 923-924.
It is important to note that Congress can regulate--but not
affirmatively command--the states when the state decides to engage in
interstate commerce. See Reno v. Condon, 528 U.S. 141 (2002). Thus in
Reno, the Court upheld an act of Congress that restricted the ability
of the state to distribute personal drivers' license information. But
Reno did not involve an affirmative command of Congress to a state to
affirmatively undertake an activity desired by Congress. Nor did Reno
involve (as proposed here) an intrusion by the federal government into
the delegation of state power by a state legislature--and the sate
legislature's express limits on that delegation of state power--to a
state political subdivision.
H.R. 3479 would involve a federal law which would prohibit a state
from restricting or limiting the delegated exercise of state power by a
state's political subdivision. In this case, the proposed federal law
would seek to bar the Illinois Legislature from deciding the allocation
of the state's power to build an airport or runways--and especially the
limits and conditions imposed by the State of Illinois on the
delegation of that power to Chicago. The law is clear that Congress has
no power to intrude upon or interfere with a state's decision as to how
to allocate state power.
A state's authority to create, modify, or even eliminate the
structure and power of the state's political subdivision--whether that
subdivision be Chicago, Bensenville, or Elmhurst--is a matter left by
our system of federalism and our federal Constitution to the exclusive
authority of the states. As stated by the Seventh Circuit in
Commissioners of Highways v. United States, 653 F.2d 292 (7th Cir.
1981) (quoting Hunter v. City of Pittsburgh, 207 U.S. 161, 178 (1907)):

Municipal corporations are political subdivisions of the
State, created as convenient agencies for exercising such of
the governmental powers of the State as may be entrusted to
them. For the purpose of executing these powers properly and
efficiently they usually are given the power to acquire,
hold, and manage personal and real property. The number,
nature and duration of the powers conferred upon these
corporations and the territory over which they shall be
exercised rests in the absolute discretion of the State. . .
. The State, therefore, at its pleasure may modify or
withdraw all such power, may take without compensation such
property, hold it itself, or vest it in other agencies,
expand or contract the territorial area, unite the whole or a
part of it with another municipality, repeal the charter and
destroy the corporation. All this may be done, conditionally
or unconditionally, with or without the consent of the
citizens, or even against their protest. In all these
respects the State is supreme, and its legislative body,
conforming its action to the state constitution, may do as it
will, unrestrained by any provision of the Constitution of
the United States.
Commissioners of Highways, 653 F.2d at 297 Chicago has acknowledged
that Illinois has delegated its power to build and operate airports to
its political subdivisions by express statutory delegation. 65 ILCS 5/
11-102-1, 11-102-2 and 11-102-5. These state law delegations of the
power to build airports and runways are subject to the Illinois
Aeronautics Act requirements--including the requirement that the State
approve any alterations of the airport--by their express terms. Any
attempt by Congress to remove a condition or limitation imposed by the
Illinois Legislature on the terms of that state law delegation of
authority would likely destroy the delegation of state authority to
build airports by the Illinois Legislation to Chicago--leaving Chicago
without delegated state legislative authority to build runways and
terminals at O'Hare or midway. The requirement that Chicago receive a
state permit is an express condition of the grant of state authority
and an attempt by Congress to remove that condition or limitation would
mean that there was no continuing valid state delegation of authority
to Chicago to build airports. Chicago's attempts to build new runways
would be ultra vires under state law as being without the required
state legislative authority.
Clearly this bill sets dangerous precedence by stating that
Congress--not the FAA, not Departments of Transportation, not aviation
experts--but Congress shall plan and built airports.
Further, it ignores the 10th Amendment to the U.S. Constitution. It
guts and/or undermines state laws and environmental protections. And it
sidesteps the checks-and-balances and the public hearing process.
My focus today is the same as it's always been. Finding the best fix.
And that best fix is

[[Page H5129]]

the construction of a third Chicago airport near Peotone, Illinois. The
plain truth is Peotone could be build in one-third the time at one-
third the cost. For taxpayers and travelers, it's a no-brainer.
Unfortunately, this bill mandates expansion of O'Hare yet pays mere
lip service to Peotone. It puts the projects on two separate and
unequal tracks. That is my opinion. That is also the opinion of the
Congressional Research Service, whose analysis I will provide for the
record.
What we don't need at this critical juncture is favoritism or
interference from politicians and profit-oriented airlines to stack the
deck against Peotone. What we don't need is a bill that increases the
likelihood of a constitutional challenge that prolongs the debate and
delays the fix.
Thus, I urge members to reject this unprecedented, unwise, and
unconstitutional bill.
Ronald D. Rotunda, University of Illinois College of Law,
Champaign, IL, March 1, 2002.
Re Proposed federal legislation granting new powers to the
city of Chicago.
Hon. Jesse L. Jackson, Jr.,
House of Representatives, Washington, DC.
Dear Congressman Jackson. As you know, I serve as the
Albert E. Jenner Professor of Law at the University of
Illinois Law School. I have authored a leading course book on
Constitutional Law. In addition, I co-author, along with my
colleague John Nowak, the widely-used multi-volume Treatise
on Constitutional Law, published by West Publishing Company.
In addition to my books, I have taught and researched in the
area of Constitutional Law since 1974.
I have been asked to give my opinion on the
constitutionality of proposed federal legislation entitled
``National Aviation Capacity Expansion Act,'' identical
versions of which have been introduced in both the Senate and
the House of Representatives by Senator Durbin and
Congressman Lipinski (S. 1786, HR 3479), hereafter the
``Durbin-Lipinski legislation.''
The Durbin-Lipinski legislation seeks to enact
Congressional approval of a proposal to construct a major
alteration of O'Hare Airport in Chicago. While this
legislation focuses on Chicago and the State of Illinois, the
issues raised by the legislation have serious constitutional
implications for all 50 States.
There are two key components of the legislation that have
been the subject of my examination.
First Section 3(a)(3) attempts to give the City of Chicago
(a political subdivision and instrumentality of the State of
Illinois) the legal power and authority to build a proposed
major alteration of O'Hare even though state law does not
authorize Chicago to build the alteration without first
receiving a permit from the State of Illinois. Chicago, as a
legal entity, is entirely a creation of state--not federal
law--and Chicago's authority to build airports is essentially
an exercise of state law power delegated to Chicago by the
Illinois General Assembly.
The requirement that Chicago first obtain a state permit is
an integral and essential element of that delegation of state
power. The U.S. Constitution prohibits Congress (1) from
invading and commandeering the exercise of state power to
build airports, and (2) from changing the allocation of
state-created power between the State of Illinois and its
political subdivisions. The U.S. Constitution, in short,
prohibits Congress from essentially rewriting state law
dealing with the delegation of state power by eliminating the
conditions, restrictions, and prohibitions imposed by the
Illinois General Assembly on that delegation. These
constitutional restrictions on Congress' power--which
prohibit Congress from requiring states to change their state
laws governing cities--are often termed Tenth Amendment
restrictions.
Similarly, the provisions of Section 3(f) of the proposed
Durbin-Lipinski legislation are necessarily conditioned upon
the existence of state law authority of Chicago to enter into
agreements for a third party (the FAA) to alter O'Hare
without first obtaining a permit from the State of Illinois.
But Chicago has no state law authority (under the delegation
of state power to build and alter airports) to enter into an
agreement to engage in a massive alteration of O'Hare without
a state permit. Congress cannot confer powers on a political
subdivision of a State where the State has expressly limited
its delegation of state power to build airports to require a
state permit. Congress has no constitutional authority to
create powers in an instrumentality of State law (Chicago)
when the very authority and power of Chicago to undertake the
actions proposed by Congress depends on compliance with--and
is contrary to--the mandates of the Illinois General
Assembly.
For the reasons discussed below, it is my opinion that the
proposed legislation is unconstitutional.
Summary of Analysis
The following is a summary of my analysis:
1. Under the governing United States Supreme Court
decisions of New York v. United States and Printz v. United
States, which are discussed below, the proposed legislation
is not supported by any enumerated power and thus violates
the limitations of the Tenth Amendment of the Constitution.
In these decisions, the Supreme Court held that legislation
passed by Congress, purportedly relying on its exercise of
the Commerce Power (nuclear waste legislation in New York and
gun control legislation in Printz) was unconstitutional
because the federal laws essentially commandeered state law
powers of the States as instrumentalities of federal policy.
2. The same constitutional flaws afflict the proposed
Durbin-Lipinski legislation. Central to the Durbin-Lipinski
legislation are two provisions [sections 3(a)(3) and 3(f)]
that purport to empower or authorize Chicago (a political
instrumentality of the State of Illinois, and thus a city
that has no authority or even legal existence independent of
state law) to undertake actions for which Chicago has not
received any delegation of authority from the State of
Illinois and that, in fact, are directly prohibited by
Illinois law when the conditions and limitations of the State
delegation of authority have not been satisfied.
3. Under Illinois law, Chicago (like any other political
subdivision of a State) has no authority to undertake any
activity (including constructing airports) without a grant of
state authority from the State of Illinois. Under Illinois
law, actions taken by political subdivisions of the State
(e.g., Chicago) without a grant of authority from the State,
or actions taken by political subdivision in violation of the
conditions, limitations or prohibitions imposed by the State
in delegating the state authority, are plainly ultra vires,
illegal, and unenforceable. The City of Chicago is a creature
of state law, not federal law.
4. The power exercised by any state political subdivision
(e.g., the power to construct airports) is in reality a power
of the State--not inherent in the existence of the political
subdivision. For the political subdivision to have the legal
authority to exercise that state power, there must be a
delegation of that state power by the State to the
political subdivision. Further, it is axiomatic that any
such delegation of state power to a political subdivision
must be exercised in accordance with the conditions,
limitations, and prohibitions accompanying the State's
delegation of that power.
5. In the case of airport construction, the Illinois
General Assembly has enacted a statute that delegated to
Chicago (and other municipalities) the state law power to
construct airports explicitly and specifically subject to
certain limits and conditions that the General Assembly
imposed. One basic requirement is that Chicago must first
comply with all of the requirements of the Illinois
Aeronautics Act--including the requirement that Chicago first
receive a permit (a certificate of approval) from the State
of Illinois. the Illinois General Assembly has expressly
provided that municipal construction or alteration of an
airport without such a state permit is unlawful and ultra
vires.
6. Section 3(a)(3) of the Durbin-Lipinski legislation
expressly authorizes Chicago to proceed with the ``runway
redesign plan'' (a multi-billion dollar modification of
O'Hare) without regard to the clear delegation limitations
and prohibitions imposed by the Illinois General Assembly on
the state statutory delegation to Chicago of the state law
power to construct airports. Illinois law explicitly says
Chicago has no state law authority to build or alter airports
without first complying with the Illinois Aeronautics Act,
including the state permitting requirements of Sec. 47 of
that Act. Even though Chicago (a political creation and
instrumentality of the State of Illinois) has no power to
build or modify airports (a state law power) unless Chicago
obtains State approval, Section 3(a)(3) purports to infuse
Chicago (which has no legal existence independent of state
law) with a federal power to build airports and to disregard
Chicago's fundamental lack of power under state law to
undertake such actions (absent compliance with state law).
Like New York v. United States and Printz v. United States
the proposed Durbin-Lipinski legislation involved Congress
attempting to use a legal instrumentality of a State (i.e.,
the state power to build airports exercised through its
delegated state-created instrumentality, the city of Chicago)
as an instrument of federal power. As the Supreme Court held
in New York and Printz, the Tenth Amendment--and the
structure of ``dual sovereignty'' it represents under our
constitutional structure of federalism--prohibits the federal
government from using the Commerce power to conscript state
instrumentalities as its agents.
7. Similar problems articulated in New York and Printz
fatally afflict Section 3(f) of the proposed Durbin-Lipinski
legislation. That section provides that, if (for whatever
reason) construction of the ``runway design plan'' is not
underway by July 1, 2004, then the FAA Administrator (a
federal agency) shall construct the ``runway redesign plan''
as a ``Federal Project''. But, Section 3(f)(1) then provides
that this ``federal project'' must obtain several agreements
and undertakings from Chicago--agreements and undertakings
that are controlled by state law, which limits Chicago's
authority to enter into such agreements or accept such
undertakings. Chicago has no authority under the state law
(which confers upon Chicago the state power to construct
airports) to enter into agreements with any third party (be
it the United States or a private party) to make alterations
of an airport without the state permit required by state
statute. Thus, Chicago has no authority under state law to
enter into an agreement with the FAA Administrator to have
the runway redesign

[[Page H5130]]

plan constructed by the Federal government because Chicago
has not received approval from the State of Illinois under
the Illinois Aeronautics Act--a specific condition and
prohibition of the delegation of state power (to build
airports) to Chicago by the Illinois General Assembly. Just
as Chicago (a creation and instrumentality of the State of
Illionis) has no power or authority under state law (absent
compliance with the Illinois Aeronautics Act) to enter into
an agreement for the FAA to construct the runway redesign
plan, Chicago also has no power or authority (absent
compliance with the Illinois Aeronautics Act) to enter into
the other agreements provided for in Sections 3(f)(1)(B) of
the Durbin-Lipinski legislation. Again, Section 3(f) is an
attempt to have Congress use the Commerce power to conscript
state instrumentalities as its agents. Instead of Congress
regulating interstate commerce directly (which both New York
v. United States and Printz allow), the Durbin-Lipinski
legislation seeks to regulate how the State regulates one of
its cities (which both New York v. United States and Printz
do not allow).
8. The Durbin-Lipinski legislation is not a law of
``general application''. There is a line of Supreme Court
decisions which allow Congress to use the Commerce Power to
impose obligations on the States when the obligations imposed
on the States are part of laws which are ``generally
applicable'' i.e., that impose obligations on the States and
on private parties alike. See e.g., Reno v. Condon, 528 U.S.
141 (2000) (Federal rule protecting privacy of drivers'
records upheld because they do not apply solely to the
State), South Carolina v. Baker, 485 U.S. 505 (1988); (state
bond interest not immune from nondiscriminatory federal
income tax); Garcia v. San Antonio Metropolitan Transit
Authority, 469 U.S. 528, (1985) (law of general
applicability, binding on States and private parties,
upheld). But these cases have no application where, as here
and in New York and Printz, the Congressional statute is not
one of general applicaiton but a specifically directed at the
States to use state law instrumentalities as tools to
implement federal policy. Here the Durbin-Lipinski
legislation is doubly unconstitutional, because it does not
apply to private parties or even to all States but only to
one State (Illinois) and its relationship to one city
(Chicago). The Durbin-Lipinski legislation proposes to use
Chicago (an instrumentality of state power whose authority to
construct airports is an exercise of state power
expressly limited and conditioned on the limits and
prohibitions imposed on that delegation by the Illinois
legislature) as a federal instrumentality to implement
federal policy. Congress is commandeering a state
instrumentality of a single State (Illinois) against the
express statutory will of the Illinois Legislature, which
has refused to confer on Chicago (an instrumentality of
the State) the state law power and authority to build
airports unless Chicago first obtains a permit from the
State of Illinois. This is an unconstitutional use of the
Commerce Power under the holdings New York and Printz and
does not fall within the ``general applicability'' line of
cases such as Reno v. Condon, South Carolina v. Baker, and
Garcia.

analysis

Before discussing any further the specific provisions of
the Durbin-Lipinski legislation, let us review some important
background law.
A. The basic legal principles
Cities are Creatures of the States and State Law--Not
Instrumentalities of Federal Power. Normally, this
controversy surrounding the proposed expansion of O'Hare
Airport would be left to the state political process. Under
Illinois law, the cities in this state have only the power
that the State Constitution or the legislature grants to
them, subject to whatever limits the State imposes. This
legal principle has long been settled.
Nearly a century ago, the U.S. Supreme Court, in Hunter v.
City of Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151
(1907) held that, under the U.S. Constitution, cities are
merely creatures of the State and have only those powers that
the State decides to give the, subject to whatever limits the
States choose to impose:
``This court has many times had occasion to consider and
decide the nature of municipal corporations, their rights and
duties, and the rights of their citizens and creditors.
[Citations omitted.] It would be unnecessary and unprofitable
to analyze these decisions or quote from the opinions
rendered. We think the following principles have been
established by them and have become settled doctrines of this
court, to be acted upon wherever they are applicable.
Municipal corporations are political subdivisions of the
state, created as convenient agencies for exercising such of
the governmental powers of the state as may be [e]ntrusted to
them. . . . The number, nature, and duration of the powers
conferred upon these corporations and the territory over
which they shall be exercised rests in the absolute
discretion of the state. . . . The state, therefore, at its
pleasure, may modify or withdraw all such powers, may take
without compensation such property, hold it itself, or vest
it in other agencies, expand or contract the territorial
area, unite the whole or a part of it with another
municipality, repeal the charter and destroy the corporation.
All this may be done, conditionally or unconditionally, with
or without the consent of the citizens, or even against their
protest. In all these respects the state is supreme, and its
legislative body, conforming its action to the state
Constitution, may do as it will, unrestrained by any
provision of the Constitution of the United States.''

Hunter held that a State that simply takes the property of
municipalities without their consent and without just
compensation did not violate due process. While Hunter is an
old case, it still is the law, and the Seventh Circuit
recently quoted with approval the language reprinted here.
The Illinois Aeronautics Act Expressly Limits Chicago's
Power to Build and Alter. The State of Illinois has delegated
to Chicago the power to build and alter airports. But that
power is expressly limited by the requirement that Chicago
must comply with the Illinois Aeronautics Act. And the
Illinois Aeronautics Act provides that Chicago has no power
to make ``any alteration'' to an airport unless it first
obtains a permit, a ``certificate of approval,'' from the
State of Illinois. Finally, Chicago has not obtained this
certificate of approval. That fact is what has led to the
proposed federal intervention.
B. The federalism problem
As mentioned above, section 3(a)(3) of the proposed federal
law overrides the licensing requirements of Sec. 47 of the
Illinois Aeronautics Act. This section states:
``(3) The State shall not enact or enforce any law
respecting aeronautics that interferes with, or has the
effect of interfering with, implementation of Federal policy
with respect to the runway redesign plan including sections
38.01, 47, and 48 of the Illinois Aeronautics Act.''

In addition, section 3(f) authorizes Chicago to enter into an
agreement with the federal government to construct the O'Hare
Airport expansion. This project is called a ``Federal
project,'' but Chicago must agree to construct the ``runway
redesign as a Federal Project,'' and Chicago provides the
necessary land, easements, etc., ``without cost to the United
States.''
What this proposed legislation does is authorize the City
of Chicago to implement an airport expansion approved by the
Administrator of the Federal Aviation Administration. But,
under state law, Chicago cannot expand O'Hare because it does
not have the required state permit.
There is no doubt that the O'Hare Airport is a means of
interstate commerce, and Congress may certainly impose
various rules and regulations on airports, including O'Hare.
Congress, for example, may decide to require airport security
and require that the security agents be federal employees.
Or, Congress could provide that it would build and takeover
the O'Hare Airport and construct expansion if the State of
Illinois refused to do so.
Congress may also use its spending power to take land by
eminent domain and then construct or expand an airport, no
matter that the state law provides. The limits on the
spending clause are few.
But, the proposed law does not take such alternatives. It
does not impose regulations on airports in general, nor does
it exercise the very broad federal spending power. Nor does
the proposed law authorize the federal government take over
ownership and control of O'Hare Airport. Instead, it seeks to
use an instrumentality of state power (i.e., the state law
power to build airports as delegated to a state
instrumentality, the city of Chicago) as an exercise of
federal power.
The proposed federal law is stating that it is creating a
federal authorization or empowerment to the City of Chicago
to do that which state law provides that Chicago may not do--
expand O'Hare Airport without complying with state laws that
create the City of Chicago and delegate to it certain limited
powers that can be exercised only if within the limits of the
authorizing state legislation.
New York v. United States
The proposed federal law is very similar to the law that
the Supreme Court invalidated a decade ago in New York v.
United States. The law that New York invalidated singled out
states for special legislation and regulated that states'
regulation of interstate commerce. The proposed Durbin-
Lipinski legislation singles out a State (Illinois) for
special legislation and regulates the State's regulation of
interstate commerce dealing with O'Hare Airport.
While the law in this area has shifted a bit over the last
few decades, it is now clear that Congress can use the
Interstate Commerce Clause to impose various burdens on
States as long as those laws are ``generally applicable.''
The federal law may not single out the State for special
burdens. For example, Congress may impose a minimum wage on
state employees in, or affecting, interstate commerce as long
as Congress imposes the same minimum wage requirements on
non-state workers in, or affecting, interstate commerce.
Congress can regulate the States using the Commerce Clause if
it imposes requirements on the States that are generally
applicable--that is, if it imposes the same burdens on
private employers. Congress cannot single out the States for
special burdens; it cannot commandeer or take control over
the States or order a state legislature to increase the home
rule powers of the City of Chicago; it cannot enact federal
legislation that adds to or revises Chicago's state created
and limited delegated powers.
The leading case, New York v. United States, held that the
Commerce Clause does not authorize the Federal Government to

[[Page H5131]]

conscript state governments as its agents. ``Where a federal
interest is sufficiently strong to cause Congress to
legislate, it must do so directly; it may not conscript state
governments as its agents.'' The proposed Durbin-Lipinski
legislation will do exactly what New York prohibits: it will
conscript the City of Chicago as its agent and interfere with
the relationship between the State of Illinois and the entity
it created, the City of Chicago.
New York invalidated a legislative provision that is
strikingly similar to the proposed federal Durbin-Lipinski
legislation. The Court, in the New York case, considered the
Low-Level Radioactive Waste Policy Amendments Act of 1985.
Congress was concerned with a shortage of disposal sites for
low level radioactive waste. The transfer of waste from one
State to another is obviously interstate commerce. Congress,
in order to deal with the waste disposal problem, crafted a
complex statute with three parts, only one of which was
unconstitutional. There were a series of monetary incentives,
which the Court unanimously upheld under Congress' broad
spending powers. Congress also authorized States that adopted
radioactive waste and storage disposal guidelines to bar
waste imported from States that had not adopted certain
storage and disposal programs. The Court, again unanimously,
relied on long-settled precedent that approves of Congress
creating such trade barriers in interstate commerce.
Then the Court turned to the ``take title'' provisions and
held (six to three) that they were unconstitutional. The
``take title'' provision in effect required a State to enact
certain regulations and, if the State did not do so, it must
(upon the request of the waste's generator or owner), take
title to and possession of the waste and become liable for
all damages suffered by the generator or owner as a result of
the State's failure to promptly take possession.
The Court explained that Congress could, if it wished,
preempt entirely state regulation in this area and take over
the radioactive waste problem. But Congress could not order
the States to change their regulations in this area. Congress
lacks the power, under the Constitution, to regulate the
State's regulation of interstate commerce. This is what the
proposed federal O'Hare Airport bill will do: it will
regulate the State's regulation of interstate commerce by
telling the State that it must act as if the City of Chicago
has complied with the Illinois Aeronautics Act and other
state rules.
In a nutshell, Congress cannot constitutionally commandeer
the legislative or executive branches. The Court pointed out
that this commandeering is not only unconstitutional (because
nothing in our Constitution authorizes it) but also bad
policy, because federal commandeering serves to muddy
responsibility, undermine political accountability, and
increase federal power.
The proposed Durbin-Lipinski legislation prohibits Illinois
from applying its laws regulating one of its cities. The
proposed federal law also authorizes the federal government
to make an agreement with Chicago, pursuant to which Chicago
will assume some significant obligations, even though present
state law gives Chicago no authority to engage in this
activity. As the six to three New York decision made clear:
``A State may not decline to administer the federal
program. No matter which path the State chooses, it must
follow the direction of Congress. . . . No other federal
statute has been cited which offers a state government no
option other than that of implementing legislation enacted by
Congress. Whether one views the take title provision as lying
outside Congress' enumerated powers, or as infringing upon
the core of state sovereignty reserved by the Tenth
Amendment, the provision is inconsistent with the federal
structure of our Government established by the
Constitution.''
The proposed Durbin-Lipinski legislation is very much like
the law that six justices invalidated in New York. The O'Hare
bill provides that, no matter what the State chooses, ``it
must follow the direction of Congress.'' The State has ``no
option other than that of implementing legislation enacted by
Congress.''
The Court in New York went on to explain that there are
legitimate ways that Congress can impose its will on the
states:
``This is not to say that Congress lacks the ability to
encourage a State to regulate in a particular way, or that
Congress may not hold out incentives to the States as a
method of influencing a State's policy choices. Our cases
have identified a variety of methods, short of outright
coercion, by which Congress may urge a State to adopt a
legislative program consistent with federal interests. Two of
these methods are of particular relevance here.''
The Court then discussed those two alternatives. First,
there is the spending power, with Congress attaching
conditions to the receipt of federal funds. The proposed
Durbin-Lipinski legislation rejects the spending power
alternative. Second, ``where Congress has the authority to
regulate private activity under the Commerce Clause, we have
recognized Congress' power to offer States the choice of
regulating that activity according to federal standards or
having state law pre-empted by federal regulation.'' The
proposed Durbin-Lipinski legislation rejects that alternative
as well. It does not propose that Congress directly takeover
and expand
O'Hare Airport. Instead, it proposes that the City of Chicago
be allowed to exercise power that the State does not allow
the City to exercise.
New York v. United States did not question ``the authority
of Congress to subject state governments to generally
applicable laws.'' But Congress cannot discriminate against
the States and place on them special burdens. It cannot
commandeer or command state legislatures or executive branch
officials to enforce federal law. Congress can regulate
interstate commerce and States are not immune from such
regulation just because they are States. For example,
Congress can forbid employers from hiring child labor to work
in coal mines, whether a private company or a State owns the
coal mine and employs the workers.
Printz v. United States. Following the New York decision,
the Court invalidated another federal statute imposing
certain administrative duties on local law enforcement
officials, in Printz v. United States. The Brady Act, for a
temporary period of time, required local law enforcement
officials to use ``reasonable efforts'' to determine if
certain gun sales were lawful under federal law. The federal
law also ``empowered'' these local officers to grant waivers
of the federally prescribed 5-day waiting period for handgun
purchases. Note that the proposed Durbin-Lipinski legislation
will also ``empower'' the City of Chicago to do that which
Illinois does not authorize the city to do.
To make the analogy even more compelling, the chief law
enforcement personal suing in the Printz case said that state
law prohibited them from undertaking these federal
responsibilities. That, of course, is the exact position in
which Chicago finds itself. State law prohibits Chicago from
entering into and committing to these federal
responsibilities (e.g., the agreements between Chicago and
the FAA in Sec. 3(f) of the proposed Durbin-Lipinski
legislation call for construction as a ``federal project''
but then require Chicago to either construct or allow
construction without a permit from the State of Illinois).
We should realize that the proposed Durbin-Lipinski
legislation--in commanding and singling out the State of
Illinois to, in effect, repeal its legislation governing the
powers delegated to the City of Chicago--is quite unusual and
not at all in the tradition of federal legislation. For most
of our history, Congress would explicitly only ``recommend''
or ``request'' the assistance of the governors and state
legislatures in implementing federal policy. It is only in
very recent times that Congress has sought explicitly to
commandeer or order the legislative and executive branches of
the States to implement federal policies. Because such
federal legislative activity is recent, the case law in this
area is recent, but the case law is clear in prohibiting this
type of federal assertion of power.
New York v. United States held that Congress cannot
``command a State government to enact state regulation.''
Congress may regulate interstate commerce directly, but it
may not ``regulate state governments' regulation of
interstate commerce.'' The Federal Government may not
``conscript state governments as its agents.'' Congress has
the ``power to regulate individuals, not States.''
In short, there are important limits on the power of the
federal government to commandeer the state legislature or
state executive branch officials for federal purposes.
Another way to think about this issue is that, to a certain
extent, the Constitution forbids Congress from imposing what
recently have been called ``unfunded mandates'' on state
officials. Congress cannot simply order the States or state
officials or a city to take care of a problem. Congress can
use its spending power to persuade the States by using the
carrot instead of the stick.
While there are those who have attacked the restrictions
that New York v. United States have imposed on the Federal
Government, it is worth remembering the line-up of the Court
in Maryland v. Wirtz when the justices first considered this
issue. That case rejected the applicability of the Tenth
Amendment and held that it was constitutional for Congress to
set the wages, hours, and working conditions of employees,
including state employees in interstate commerce. However,
Justice Douglas, who was joined by Justice Stewart,
dissented. Douglas found the law to be a ``serious invasion
of state sovereignty protected by the Tenth Amendment'' and
``not consistent with our constitutional federalism.'' He
objected that Congress, using the broad commerce power, could
``virtually draw up each State's budget to avoid `disruptive
effect[s]' '' on interstate commerce. New York v. United
States prevents this result.
The ``generally applicable'' restriction is important, and
it explains Reno v. Condon. Congress enacted the Driver's
Privacy Protection Act (DPPA), which limited the ability of
the States to sell or disclose a driver's personal
information to third parties without the driver's consent.
Chief Justice Rehnquist, for a unanimous Court, upheld the
law as a proper regulation of interstate commerce and not
violating any principles of federalism found in New York v.
United States or Printz because the law was ``generally
applicable.''
Reno grew out of a congressional effort to protect the
privacy of drivers' records. As a condition of obtaining a
driver's license or registering a car, many States require
drivers to provide personal information, such as name,
address, social security number, medical information, and a
photograph. Some States then sell this personal information
to

[[Page H5132]]

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 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

[[Page H5133]]

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

[[Page H5134]]

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

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 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.

[[Page H5135]]

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
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

[[Page H5136]]

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 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

[[Page H5137]]

of the Big Seven to compete with each other and examines the
question as to whether this geographic allocation of Fortress
Hub markets by the Big Seven violates federal antitrust laws.
Does the Big Seven's refusal to compete in Metropolitan
Chicago--their refusal to use the South Suburban Airport:
``If you build it, we won't come.''--violate federal anti-
trust law?
The SOC study also focus on the Metropolitan Chicago market
as a case study of the Big Seven's de facto arrangement not
to compete with their fellow major airlines in each other's
Fortress Hub cities. A glaring example of this concerted
refusal by the major airlines to compete in the fellow major
airlines' Fortress Hub markets can be found in the decision
of the major airlines to boycott the proposed new South
Suburban Airport in metropolitan Chicago. The major airlines'
``If you build it, we won't come'' argument is simply a
manifestation of the majors' overall horizontal geographic
restraint of major markets across the nation--and
particularly in metropolitan Chicago.

the findings of this study

The study's findings include:
1. De Facto Geographic Allocation of Fortress Hub Markets
by the Big Seven. The heart of the monopoly problem in
Fortress Hub markets--and the resultant high monopoly-
inducted air fares--has been the de facto agreement among the
Big Seven to stay out of each other's Fortress Hub markets
with any competitively significant level of entry into that
market.
2. The Fortress Hub Monopoly Dominance Geographic
Allocation by the Big Seven is Likely Costing the Nation's
Air Travelers Billions of Dollars Annually. There is an
overwhelming body of evidence that--because of the Fortress
Hub monopoly dominance of one of two of the Big Seven at many
metropolitan areas across the country--the Big Seven airlines
are able to charge excessive air fares totaling billions of
dollars a year. The principal victims of this monopoly-
induced Fortress Hub excess fares are: (1) the time-sensitive
business traveler who pays unrestricted coach fares and (2)
the so-called ``spoke'' passenger who must connect through
one of the ``Fortress Hubs'' monopoly tithe American
consumer: billions of dollars per year in excess fares--
hundreds of millions per year in metropolitan Chicago alone.
3. The Big Seven's De Facto Geographic Allocation of Major
Air Travel Markets in the Nation through the Development of
``Fortress Hubs'' Constitutes a Per Se Violation of Federal
Antitrust laws. Little discussion or analysis has been
undertaken by Congress or the Administration as to whether
this concerted refusal by the Big Seven to compete in their
fellow major airlines' Fortress Hub markets--which costs
consumers billions annually--constitutes a violation of
federal antitrust laws. Based on clear and repeated Supreme
Court precedent, it clearly does. The Big Seven's de facto
geographic allocation of major air travel markets in the
Fortress Hub through the development of ``Fortress Hubs''
constitutes a per se violation of the antitrust laws. The
Supreme Court has uniformly condemned arrangements to carve
up horizontal markets as per se violations of section 1 of
the Sherman Act. See e.g., Palmer v. BRG Group of Georgia,
498 U.S. 46, 49 (1990); United States v Topco Associates,
Inc., 405 U.S. 596, 607-609 (1972).
4. The Big Seven's Explicit Refusal to Compete In
Metropolitan Chicago: If You Build It, we Won't Come. In the
metropolitan Chicago air travel market, the illegal
collective refusal of the Big Seven to compete is manifested
by two actions: (1) the de facto abandonment by members of
the Big Seven (other than United and American) of any
significant role at O'Hare Airport and (2) the announcement
by the Big Seven and its allied in the Air Transport
Association that they would refuse to use a new South
Suburban Regional Airport. In the popular jargon of the
media, the Big Seven have said ``If you build it, we won't
come.''
In reality, this collective refusal to use a new regional
airport is nothing more than a manifestation of the Big
Seven's horizontal market agreement not to compete in any
significant way with United and American in their dominant
Chicago market. This refusal by major airlines such as Delta,
Northwest, USAir, and Continental to use new metropolitan
Chicago airport capacity to compete in metropolitan Chicago
is but an individual example of the per se antitrust
violation of allocating geographic markets by the major
airlines. ``If you build it, we won't come'' is a blatant
violation of the federal antitrust laws.
5. The City of Chicago's Participation in Opposing New
Capacity and in Assisting Big Seven in Their Refusal to Use
the New South Suburban Airport is Not Immune from Antitrust
Law Prosecution. The available evidence is clear that the
City of Chicago and its agents have been active participants
in helping the Big Seven Airlines in their refusal to compete
in the Chicago market and their refusal to use the proposed
South Suburban Airport. Absent express approval by the State
of the monopolistic practice, political subdivisions of the
State--like the City of Chicago--are not free to violate the
antitrust laws under the guise of state action.
While Congress has made municipalities immune from damages
for violations of the antitrust laws, Chicago and its
officials are not immune from prosecution for their attempts
to assist the Big Seven in their refusal to compete in the
metro Chicago market and in United and American's attempts to
monopolize that market.
6. It Appears That Federal Taxpayer Funds May Have Been
Used to Suppress Competition and Violate the Antitrust Laws
in the Chicago Market. United and American (the dominant
carriers at O'Hare)--along with other major airlines through
the Air Transport Association--have engaged in a concerted
effort to defeat construction of a new South Suburban
Airport, an airport that would provide significant capacity
opportunities for major new competition to enter the Chicago
market. United executives have stated their goal as ``Kill
Peotone''.
United and American have been assisted in their ``Kill
Peotone'' (and thus kill new competitive capacity) campaign
by representatives of the City of Chicago--including
Chicago's consultants have been paid several million dollars
in fees to assist Chicago and United and American in
expanding O'Hare and in obstructing development of a new
South Suburban Airport.
Much of the money paid to these consultants has come from
either: (1) federal Passenger Facility Charge (PFC) funds,
(2) federal Airport Improvement Program (AIP) funds, or (3)
federally subsidized municipal airport bonds (``GARBs''
General Airport Revenue Bonds). Thus, we have the following
spectacle--not only are the airlines and Chicago engaged in a
monopolistic arrangement designed to prevent new competition
from entering the Chicago market (i.e., through the new
airport)--but much of the money to implement this illegal
arrangement is coming from federal taxpayer dollars. The GAO
and the Department of Justice should be asked to conduct an
independent audit of all PFC, AIP, and GARB expenditures at
O'Hare to determine if any federal funds were used as part of
a campaign to ``Kill Petone''--i.e., a campaign to oppose
construction of a new South Suburban Airport.
7. Federal Officials Have Participated in and Supported the
Big Seven's Illegal Monopolistic Arrangement to Refuse to
Compete in the Chicago Market. Not only have federal funds
been used to support the major airlines illegal monopolistic
arrangement to refuse to compete in the Chicago market, but
it appears that federal officials within the Administration
have worked with the major airlines and Chicago to assist in
this antitrust arrangement to prevent the development of a
new airport in metropolitan Chicago. For the last several
years, federal administration officials--several of whom are
former Chicago officials who worked for the City of Chicago--
have blocked development of the new South Suburban Airport
through a series of spurious legal claims that federal law
requires that there be a ``consensus'' between the State of
Illinois and the City of Chicago before a new metropolitan
airport can be constructed. No such legal requirement exists.
Because of the active participation of key figures in the
current administration in promoting and supporting the
continued blockage of new airport development in metropolitan
Chicago--in concert with the illegal refusal of the major
airlines to compete in the Chicago market by using the new
airport--the impartiality and lack of bias of the
Administration in conducting law enforcement in this area is
legitimately suspect. The Attorney General should be asked to
appoint an independent prosecutor to conduct the antitrust
investigation and to undertake all appropriate civil legal
actions needed to correct the ongoing antitrust violations.
8. Defining the Market Under Monopoly Control and in Need
of New Competition--The Hub-and-Spoke Market. The heart of
the monopoly overcharges to travelers in the Chicago market
is the absence of competition in the ``hub-and-spoke'' market
in Chicago. None of the other Big Seven will come into the
Chicago market to establish a competitive hub-and-spoke
operation.
In an attempt to expand their monopoly and prevent new
competition from entering the Chicago market, United and
American--along with their surrogate allies--have sought to
distract attention by suggesting a south suburban airport in
metro Chicago as a ``point-to-point'' airport--not unlike
Midway. United and American argue that O'Hare should be the
only ``hub-and-spoke'' airport in metropolitan Chicago.
By shaping the argument in this fashion, United and
American guarantee that they will be allowed to continue and
dramatically expand their Fortress Hub monopoly at O'Hare.
According to their arguments, the lion's share of all the
origin-destination traffic in the region--and all of the
connecting and international traffic--should go to the sole
hub-and-spoke airport in the region: O'Hare. Any minor
overflow of ``point-to-point'' origin-destination traffic
that a dramatically expanded O'Hare and Midway could not
handle (if any) could be addressed in a small ``point-to-
point'' airport like the South Suburban Airport or Gary.
What United and American gloss over is the fact that there
is plenty of competition in the Chicago market in point-to-
point service. The real lack of competition in the Chicago
market is in the lack of additional hub-and-spoke competition
to challenge the hub-and-spoke duopoly of United and American
at Fortress O`Hare. It is this market dominance of the hub-
and-spoke market--not the point-to-point--where lack of
competition gouges the business traveler and those travelers
from ``spoke'' cities who must use a single Fortress Hub.
There is a desperate need for new competitive hub-and-

[[Page H5138]]

spoke service in the Chicago market and the place to put that
hub-and-spoke is the new South Suburban Airport.
9. Beyond Antitrust Law Enforcement, Federal Transportation
Officials Play a Major Antitrust Policy Role--In Either
Promoting Monopoly Abuses or Encouraging Competition--By
Their Decisions on the Use of Federal Taxpayer Funds. Not
only have federal officials blocked development of new
competition by blocking a new airport, federal approval of
federal expenditures for major physical changes at O'Hare
will exacerbate the monopoly power of American and United in
this region.
Chicago's so-called ``World Gateway'' program has been
designed in consultation with United and American to enhance
and expand United and American's hub-and-spoke system at
O'Hare. Chicago's World Gateway proposal is not designed to
bring new hub-and-spoke competition into O'Hare or the
Chicago market to compete with United and American.
Thus, Chicago's World Gateway proposal will enhance and
expand United and American's Fortress Hub monopoly in the
Chicago market. Since the physical design proposed by United
and American and Chicago can only go forward if federal
Transportation Department officials approve federal taxpayer
funds to subsidize the project, federal officials are being
asked to use billions of dollars in federal taxpayer funds to
expand and enhance the illegal Fortress Hub monopoly of
American and United at O'Hare. No federal officials appear to
be examining whether spending 10 billion dollars (much of it
from federal taxpayers) at O'Hare makes economic sense when
much more new capacity to support competitive hub-and-spoke
operations can be constructed at a new metropolitan airport
for less than half the cost. Nor are federal officials
examining whether the use of billions of dollars of federal
taxpayer funds to expand United and American's hub-and-spoke
duopoly at Fortress O'Hare--essentially using federal
taxpayer funds to subsidize expansion of monopoly power--is a
proper use of federal funds.
10. The Lifting of the Slot Limits at O'Hare Will Not
Provide Sufficient Capacity to Allow Significant New
Competition to Enter the Chicago Area Market. Much of the
debate over the recent passage of the federal reauthorization
of the Federal Aviation Program involved the issue of lifting
``slot restrictions'' at LaGuardia and Kennedy airports in
New York and O'Hare in Chicago. One of the principal asserted
justifications for lifting the slots was to provide access to
so-called ``new entrant'' carriers that would presumably
provide competition for the dominant carriers at O'Hare and
force prices down. Yet FAA's own capacity studies at O'Hare
demonstrate that O'Hare is already beyond acceptable limits
of capacity and can provide only marginal capacity access--if
any.
In addition, as predicted by Senator Peter Fitzgerald and
Congressman Henry Hyde, any arguable incremental theoretical
capacity at O'Hare will rapidly be consumed by United and
American--expanding their monopoly. As stated by the Illinois
Department of Transportation, the only effective way to
provide sufficient capacity for major new competition in the
Chicago market is to build major new capacity in the
metropolitan Chicago area.
11. A New Runway at O'Hare is Intended to Increase Capacity
to Expand United and American's Monopoly Power. The airlines'
current public relations argument is that the lion's share of
all the origin-destination traffic in the region (and all of
the connecting and international traffic) should go to the
sole hub-and-spoke airport in the region (O'Hare). Any minor
overflow of point-to-point origin-destination traffic that a
dramatically expanded O'Hare and Midway could not handle (if
any) could be addressed in a small point-to-point airport
like the South Suburban Airport or Gary.
Paralleling this argument is the claim by the airlines'
allies that a new runway at O'Hare is needed to ``reduce
delays.'' They claim that a new runway would not increase
O'Hare capacity but simply reduce delays.
Yet an analysis using FAA's own capacity analysis standards
and criteria demonstrates that a new runway at O'Hare would
substantially increase the capacity of the airport. This
capacity increase at O'Hare would dramatically expand
American's and United's hub-and-spoke monopoly at Fortress
O'Hare. Further, it would virtually doom the economic
justification for the new south suburban airport because the
new ``delay'' runway--once built--could easily be used to
carry the new additional traffic for which the new airport
was intended. Simply by piecemealing incremental expansion
at O'Hare, Chicago and American and United can keep the
region under the thumb of the Fortress O'Hare monopoly.
12. United's and American's Fight to Preserve and Expand
Fortress Hub Monopoly Power at O'Hare Has Grave Social,
Economic, Public Health, and Quality of Life Consequences for
the Region. Much of the discussion in this paper focuses on
the billions of dollars in monopoly induced overcharges
inflicted on air travelers--particularly the business
traveler--as a result of the Fortress Hub monopoly system.
But these monopoly abuses also inflict other serious harm on
a variety of important public and social interests.
The consequences of these abuses of monopoly power for the
metro Chicago region are stark and severe:
O'Hare area communities will be subjected to more noise,
more air pollution, and more safety hazards because--under
the United, American, and Chicago proposal--all the
international, all the transfer traffic, and the lion's share
of the origin-destination traffic are jammed into an already
overstuffed O'Hare. Any new airport--even if built--will
simply receive the origin-destination overflow (if any) from
a vastly expanded O'Hare and Midway.
South Chicago and south suburban communities will continue
to suffer serious economic decline because the South Suburban
Airport--which should have been built years ago--lies hostage
to the unholy alliance struck between the monopoly interest
of United and American and the political pique of Chicago's
mayor.

recommendations

Based on the facts and the antitrust law analysis contained
in this report, the Suburban O'Hare Commission recommends the
following actions:
1. The United States Attorney General and the United States
Attorney for the Northern District of Illinois should
initiate an investigation into the collective refusal of the
Big Seven airlines to compete against each other in each
other's Fortress Hub Markets. Included in the investigation
should be an examination of the role of third party
collaborators in the antitrust violations--including the City
of Chicago and other private organizations and individuals
who have assisted the Big Seven (including United and
American) in perpetrating these violations. Because of the
involvement by federal officials in affirmatively assisting
the Big Seven and the City of Chicago in keeping significant
competition out of Chicago, the Attorney General should be
asked to consider the appointment of independent counsel.
2. The United States Attorney General and the United States
Attorney should bring a civil action in federal court to
enjoin and break up the illegal Fortress Hub geographic
market allocation by the Big Seven and prohibit the
collective refusal by the Big Seven to compete in each
other's Fortress Hub markets. Included in the relief should
be a requirement that members of the Big Seven halt their
collective refusal to use a new South Suburban Airport in
metropolitan Chicago and a requirement that competitive hub-
and-spoke operations be established in metro Chicago to
compete with United and American.
3. The State Attorneys General should initiate civil damage
actions to recover treble damages for the billions of dollars
per year in excess monopoly profits in airfare overcharges
that have been charged at the Big Seven's Fortress Hubs. The
Illinois Attorney General should bring suit to recover treble
damages for the hundreds of millions of dollars in monopoly
overcharges by American and United at Fortress O'Hare. On a
multiple year basis in Illinois alone, the treble damages
recoverable for consumers would exceed several billion
dollars.
4. The GAO and the Department of Justice should undertake
an immediate and detailed audit of all federal funds that may
have been used to further the refusal of the other members of
the Big Seven to compete with United and American in
metropolital Chicago--particularly the campaign by the
airlines and Chicago to ``Kill Peotone.''
5. The United States Department of Transportation should
withhold any further approvals of federal funds for expansion
of the United and American duopoly at Fortress O'Hare.
6. The House and Senate Judiciary Committees should conduct
immediate hearings on these issues.
7. Our Governor and our two United States Senators, the
Speaker of the House, and our Illinois Attorney General
should be respectfully asked what specific actions they will
take to (1) break up the Fortress Hub system--particularly
Fortress O'Hare; (2) bring new hub-and-spoke competitors into
the Chicago market; (3) recover the billions in excess
monopoly profits from the Fortress O'Hare overcharges; (4)
prevent the Big Seven from continuing to refuse to use the
new capacity provided to the South Suburban Airport; and (5)
assemble the federal and state resources needed to rapidly
build the South Suburban Airport.
8. Our Governor should hold fast to his promise not to
permit any additional runways at O'Hare. To do otherwide
would simply enhance and expand the monopoly power of
Fortress O'Hare and doom the opportunity to bring new
competition into the region at the South Suburban Airport.
9. The two candidates for President of the United States--
both of whom have likely received large campaign
contributions from the Big Seven--should be respectfully
asked what they will do to break up the Fortress Hub system
nationally and Fortress O'Hare in particular. Vice President
Gore in particular should be asked why his administration has
for the past eight years looked the other way while the Big
Seven has used violations of the nation's antittust laws to
literally steal billions of dollars from American consumers.
Mr. Gore should also be asked to explain why his
administration has literally blocked development of new
competitive capacity in metro Chicago--i.e., a new South
Suburban Airport--at every turn Finally, Mr. Bush should be
asked specifically what he will do to build the South
Suburban Airport and break up Fortress O'Hare.

introduction--relevant quotations

Alfred Kahn, the ``father'' of airlines deregulation:

[[Page H5139]]

Anyone who says applying antitrust laws is the same as re-
regulation is simply ignorant. To preserve competition we
need the antitrust laws and vigorous enforcement of the
antitrust laws.
When we deregulated the airlines, we certainly did not
intend to exempt them from the antitrust laws.
Gordon Bethune, Chairman and CEO, Continental Airlines:
``Continental chief says hub competition over,'':
Competition among airlines for dominance at major U.S.
airports is virtually a thing of the past, the chairman of
Continental Airlines said on Monday.
Continental chief executive Gordon Bethune, in a break from
the usual industry line that competition reigns supreme, said
the large air carriers have staked out their respective hubs
and will be difficult to dislodge.
``In the last 20 years, the marketplace of the United
States has been sorted out. American (Airlines) kind of
controls Dallas-Fort Worth and Miami and we've got Newark,
Houston and Cleveland. Delta's got Atlanta,'' Bethune said in
remarks to the National Defense Transportation Association
annual conference.
U.S. Senator Mike Dewine:
During the last year, there has been rising concern among
some of the smaller airlines that the seven largest passenger
carriers in the U.S. are no longer competing against each
other. Essentially, the argument goes, the ``Big Seven'' have
carved up the U.S. aviation market . . .
CEOs of 16 major airlines tell Illinois' Governor that they
will not use new airport in metropolitan Chicago:
We are writing to express our concerns about further
planning and development of the so-called Third Chicago
Airport. It is our understanding that the State of Illinois
will not proceed with the construction of a third airport
without the support of the airlines. This letter is intended
to inform you that the airlines oppose further planning and
construction of this facility. . .
USA Today:
In the two decades since deregulation forced the government
to stop telling carriers what fares to charge and which
cities to serve, the big airlines have built up ``fortress
hubs'' where, without meaningful competition, they alone
decide where to go, how often to go there and how much to
charge.
What travelers suspect is true: Airfares are climbing fast,
and nowhere is the situation worse than at the hubs for the
nation's largest airlines.
Business travelers have been especially hard hit at hubs.
And almost everywhere, hub fares, especially for business
fliers, are soaring.
Even when low-fare carriers enter a hub market, they
usually control so little of the traffic that they can't do
much to bring fares down.
New York Times:
Business travelers feel particularly abused because they
account for more than half of airline revenue. For in the
through-the-looking-glass world of airline pricing, the fares
paid by leisure travelers, who book as long as a month in
advance and stay over a weekend night, have in many cases
declined, while last-minute fully refundable fares, which are
most often paid by business travelers, are skyrocketing.
``The carriers always say that the business traveler is
inelastic,'' said Peter M. Buchheit, director of travel and
meeting services for the Black & Decker Corporation, which
spent $18 million on air tickets for its American employees
last year. ``We need to travel so we will pay whatever it
costs. But it has reached a point where we can't pay it
anymore.''
The burden of high fares is even greater on small
companies. John W. Galbraith, president of Twin Advertising,
a small company based in Rochester that had $2 million in
billings last year, said he was thinking about dropping
clients outside the city because the high cost of visiting
them cancels out the profit he makes from having their
business.
``Basically, what the airlines have done to companies like
ours is kept us from growing,'' he said. (New York Times
January 11, 1998)
United States Supreme Court on horizontal market
allocations as per se violations of federal antitrust law:
One of the classic examples of a per se violation of Sec. 1
[of the Sherman Antitrust Act] is an agreement between
competitors at the same level of the market structure to
allocate territories in order to minimize competition. . . .
This Court has reiterated time and time again that
`[h]orizontal territorial limitations . . . are naked
restraints of trade with no purpose except stifling of
competition.' Such limitations are per se violations of the
Sherman Act. (The United States Supreme Court in the 1990
decision in Palmer v. BRG Group of Georgia, 498 U.S. 46, 49
(1990).)
Relevant Provisions of The Sherman Act:
Every contract, combination in the form of trust or
otherwise, or conspiracy, in restraint of trade or commerce
among the several States, or with foreign nations, is hereby
declared to be illegal. Every person who shall make any
contract or engage in any combination or conspiracy hereby
declared to be illegal shall be deemed guilty of a felony,
and, on conviction thereof, shall be punished by fine not
exceeding $10,000,000 if a corporation, or, if any other
person, $350,000, or by imprisonment not exceeding three
years, or by both said punishments, in the discretion of the
court. (Title 15 United States Code Sec. 1)
Every person who shall monopolize, or attempt to
monopolize, or combine or conspire with any other person or
persons, to monopolize any part of the trade or commerce
among the several States, or with foreign nations, shall be
deemed guilty of a felony, and, on conviction thereof, shall
be punished by fine not exceeding $10,000,000 if a
corporation, or, if any other person, $350,000, or by
imprisonment not exceeding three years, or by both said
punishments, in the discretion of the court. (Title 15 United
States Code Sec. 2)
The several district courts of the United States are
invested with jurisdiction to prevent and restrain violations
of sections 1 to 7 of this title; and it shall be the duty of
the several United States attorneys, in their respective
districts, under the direction of the Attorney General, to
institute proceedings in equity to prevent and restrain such
violations. (Title 15 United States Code Sec. 4)
[A]ny person who shall be injured in his business or
property by reason of anything forbidden in the antitrust
laws may sue therefor in any district court of the United
States in the district in which the defendant resides or is
found or has an agent, without respect to the amount in
controversy, and shall recover threefold the damages by him
sustained, and the cost of suit, including a reasonable
attorney's fee. (Title 15 United States Code Sec. 15)
1. Focusing on the Elephant in the Corner.
Over the last decade there have been extensive
congressional hearings and much media coverage of so-called
``Fortress Hubs. But much of the attention has focused on two
aspects of the Fortress Hub phenomenon:
Various ``constraints'' that the so-called ``low-cost''
``new-entrant'' airlines (e.g., Spirit Vanguard) say have
prevented these new entrants from entering and competing in
Fortress Hub markets; and
In those instances where the new low-cost airlines could
physically enter the Fortress Hub market, the dominant hub
airlines are alleged to have engaged in predatory pricing to
drive the so-called ``low-cost'' ``new-entrant'' competitors
out of the market.
But while Congress and the Administration have focused on
these elements, they have ignored what might be called ``the
elephant in the corner'' aspect of the Fortress Hub issue.
Virtually ignored in these debates has been the role of the
so-called ``major'' airlines--i.e., the so-called ``Big
Seven'' controlling members of the trade group known as the
Air Transport Association (ATA)--in creating and maintaining
the Fortress Hub system. While Congress and the U.S. DOT
talked about the anti-competitive aspects of keeping the new
``low-cost'' airlines out of the Fortress Hub market, little
attention has been directed toward the issue of whether the
Big Seven's Fortress Hub system is itself a violation of the
nation's antitrust laws.
The purpose of this study is to: (1) analyze the known
facts of the Fortress Hub system; (2) determine if the known
facts demonstrate the existence of a violation of federal
antitrust laws, (3) examine the role of the ``Big Seven's''
conduct in the Chicago air travel market as a case study
illustration of their collaborative conduct nationally in
maintaining the national Fortress Hub network, and (4)
propose remedial action.
The findings of this study unequivocally demonstrate that
the Fortress Hub system maintained by the Big Seven--alone
and through their trade organizations, the Air Transport
Association--is an illegal cartel in violation of the
Nation's antitrust laws.
2. Geographic Market Allocation through Fortress Hubs--
Mutual Protection of Fortress Hub Dominance Against New
Competition from Other Big Seven Airlines.
There is overwhelming and incontroverible evidence that,
since ``deregulation'' in 1978, the market airlines have
carved up major areas of the Nation into territories of
geographic market dominance known as ``Fortress Hubs''. Under
this Fortress Hub arrangement, one or two major airlines are
ceded geographic market dominance and other major airlines
tactitly agree not to compete in that geographic market.
Thus Delta has Fortress Hubs at Atlanta and Cincinnati,
USAir at Pittsburgh, Northwest at Minneapolis and Detroit,
American at Dallas-Ft. Worth, American and United at Chicago
O'Hare, etc. The other Big Seven airlines--either implicitly
or by explicit agreement--have agreed to stay out of each
other's Fortress Hub markets in any significant way. Thus,
for example, Delta remains unchallenged by United, Northwest,
and others in Atlanta. In turn, Delta doesn't provide
significant challenge to United 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

[[Page H5140]]

enters a few of their markets they use predatory pricing to
drive the discounters out of business.''
The broad reach of this Fortress Hub system is illustrated
in a table prepared by the National Association of Attorneys
General.

Cities Where Fortress Hubs Are Located

City and Dominant Airline
Atlanta, Delta; Chicago O'Hare, United and American;
Cincinnati, Delta; Dallas, American; Detroit, Northwest;
Houston International, Continental; Minneapolis/St. Paul,
Northwest; Denver, United; Pittsburgh, US Air; St. Louis,
TWA.
3. Monopoly Fare Premiums at Fortress Hubs.
There is a large body of evidence and expert opinion--as
articulated by the General Accounting Office, USDOT, business
travel organizations, and the Illinois Department of
Transportation--that the dominance of these major markets by
one or two carriers results in a monopolistic ability to
raise fares beyond the air fares that would exist if there
was strong competition in these Fortress Hub markets. As
stated by the GAO as far back as 1990:
``Airports where one or two carriers handle most of the
enplaning traffic have higher fares than airports where the
traffic is less concentrated. Moreover, the data show that
fares tend to rise as concentration increases. While many
factors can influence fare changes, the evidence that we have
collected strongly suggests that fares and concentration at
an airport are related. Fares are higher at concentrated
airports than at relatively less concentrated ones, and the
evidence suggests that the gap is increasing.''
Subsequent studies by GAO since 1990 have confirmed the
problem of higher fares at Fortress Hubs--higher than would
exist in a competitive environment. See e.g., Barriers to
Entry Continue in Some Markets (GAO/T-RCED-98-112; March 5,
1998); Airline Deregulation: Barriers to Entry Continue to
Limit Competition in Several Key Domestic Markets (GAO/RCED-
97-4, Oct. 18, 1996); Domestic Aviation: Barriers to Entry
Continue to Limit Benefits of Airline Deregulation (GAO/RCED-
97-120, May, 13, 1997); Airline Competition: Higher Fares and
Less Competition Continue at Concentrated Airports (GAO/RCED-
93-141, July 15, 1993); Airline Competition: Effects of
Airline Market Concentration and Barriers to Entry on
Airfares (GAO/RCED-91-101, Apr. 26, 1991).
While repeatedly emphasizing the problem of higher monopoly
fares caused by lack of competition, GAO continued to
emphasize the lifting of slot restrictions at three of the
nation's airports as a partial solution to the problem. GAO's
prime emphasis has been to obtain access to airport capacity
for the so-called ``low-cost'' new entrant airlines into the
Fortress Hub markets.
But GAO has never analyzed the issue of the ``capacity'' of
these slot-restricted airports to service new competition--
even if the slot restrictions were lifted. As discussed
below, the FAA has repeatedly emphasized that the practical
capacity of an airport is limited (see discussion, infra.)
and that as traffic growth approaches the physical limits of
the airport's capacity, aircraft delays rise geometrically--
essentially leading to gridlock.
As the analysis contained in the 1995 DOT report A Study of
the High Density Rule, and this study show, there simply is
not enough capacity at O'Hare--even with the slots lifted--to
all significant new competition to enter the Chicago market.
This is why the Big Seven's collective refusal (discussed
infra) to use and support the major new capacity that would
be provided by the new South Suburban Airport is a central
component in the preservation of the Fortress Hub problem in
metropolitan Chicago. Moreover, any arguable minor increment
of available capacity at O'Hare will rapidly be consumed by
United and American. There simply is not enough room at
O'Hare to allow a major new competitor to gain the ``critical
mass'' to compete with United and American.
The Illinois Department of Transportation has repeatedly
emphasized its opinion that monopoly dominance at O'Hare
results in higher airfares paid by Chicago area travelers and
that major new regional airport capacity is essential to
breaking the monopoly stranglehold of Fortress O'Hare:
``There are numerous examples besides these to demonstrate
that without the competition of a new entrant, the fares at
Chicago are increasing or remain inordinately high.''
``We encourage and support your [USDOT's] focus on
anticompetitive practices that are injuring commerce, smaller
cities, and consumers in Illinois and throughout the region
serviced by O'Hare Airport as the hub of United Airlines and
American Airlines. We strongly urge, however, that the
enforcement policies should be part of a broader initiative
that will insure that there will be airport capacity
available in the Chicago area that will provide new airline
entrants the opportunity to compete with United and American.
Additional airport capacity is vital to restoring airline
competition in the Chicago, Illinois, and Midwestern
markets.''
``There is simply no room at O'Hare for new entrant
airlines to pose competitive challenges to the dominant
airlines.''
4. Time Sensitive Business Traveler Biggest Loser in
Fortress Hub Monopoly System.
The air travel consumer most seriously harmed by this
horizontal Fortress Hub market allocation is the business
traveler--particularly the small to medium size business
traveler who cannot negotiate bulk fare discounts and who
must make time sensitive business trips at unrestricted coach
fares.
The Illinois Department of Transportation estimates this
monopoly based fare penalty at O'Hare alone exceeds several
hundred million dollars per year. Nationally, the loss to the
traveling public from these monopoly premiums at Fortress
Hubs is likely to exceed several billion dollars annually.
As stated in major articles on the subject by USA Today and
the New York Times:
What travelers suspect is true: Airfares are climbing fast,
and nowhere is the situation worse than at the hubs for the
nation's largest airlines.
Business travelers have been especially hard hit at hubs
And almost everywhere, hub fares, especially for business
fliers, are soaring. (USA Today February 23, 1998)
Business travelers feel particularly abused because they
account for more than half of airline revenue. For in the
through-the-looking-glass world of airline pricing, the fares
paid by leisure travelers, who book as long as a month in
advance and stay over a weekend night, have in many cases
declined, while last-minute fully refundable fares, which are
most often paid by business travelers, are skyrocketing.
``The carriers always say that the business traveler is
inelastic,'' said Peter M. Buchheit, director of travel and
meeting services for the Black & Decker Corporation, which
spent $18 million on air tickets for its American employees
last year. ``We need to travel so we will pay whatever it
costs. But it has reached a point where we can't pay it
anymore.''
The burden of high fares is even greater on small
companies. John W. Galbraith, president of Twin Advertising,
a small company based in Rochester that had $2 million in
billings last year, said he was thinking about dropping
clients outside the city because the high cost of visiting
them cancels out the profit he makes from having their
business.
``Basically, what the airlines have done to companies like
ours is kept us from growing,'' he said. (New York Times
January 11, 1998)
Put bluntly, the Big Seven has used their monopoly power at
Fortress Hubs to literally extort billions of dollars
annually from captive travelers--most often time sensitive
business travelers living in these airlines' own Fortress Hub
communities.
5. The Second Biggest Loser in the Fortress Hub Monopoly
System is the ``Spoke'' Passenger.
The second biggest loser from this Fortress Hub monopoly
system is the so-called ``spoke'' passenger in the small to
medium size community that serves as the ``spoke'' to a
single large metropolitan Fortress Hub. Because the dominant
Big Seven airline at a Fortress Hub has no competition at its
hub, it is free to charge the spoke passenger--who must use
the hub to get to his or her destination--excessive monopoly
fares.
The Illinois Department of Transportation--again
emphasizing the lack of capacity to handle both new
competition and service to smaller and mid-size communities--
has stated the problem as follows:
``The dominant airlines are diminishing and even abandoning
service to smaller Illinois and Midwestern cities in favor of
routes that are more lucrative or that increase the power of
their hub networks.''
Because the dominant O'Hare airlines prioritize the limited
capacity at O'Hare to service the flight operations with the
highest profitability, the small community ``spoke'' traveler
gets harmed on two levels. First, he loses service when the
cominant airlines cut small community service to use the
limited capacity to service more lucrative long-haul or
international traffic--eliminating less profitable small
community service. Second, as to the small community traffic
that the dominant airlines still service, they are able to
charge exorbitant rates--knowing that the small community
spoke traveler is at their mercy.
6. The Big Seven's Fortress Hub Geographic Market
Allocation is a Per Se Violation of the Antitrust laws.
Neither the Administration nor the Congress appears to have
critically examined a central question: Does the Big Seven's
Fortress Hub geographic market allocation violate the
Nation's antitrust laws? Based on clear and repeated Supreme
Court precedent, it clearly does.
The major airlines general de facto geographic allocation
of major air travel markets in the nation through the
development of ``Fortress Hubs'' constitutes a per se
violation of the antitrust laws. The Supreme Court has
uniformly condemned arrangements to carve up horizontal
markets as per se violations of Section 1 of the Sherman Act.
See e.g., Palmer v. BRG Group of Georgia, 498 U.S. 46, 49
(1990); United States v. Topco Associates, Inc., 405 U.S.
596, 607-609 (1972).
Virtually all laymen and most lawyers shy away from
antitrust law as an economic morass difficult to understand.
But there is one area where the United States Supreme Court
has been clear and unequivocal: horizontal arrangements to
carve up geographic markets are an automatic--a ``per se''--
violation of the federal antitrust laws. Because this law is
so-clear and unambiguous--and recognizing that the airlines
will claim that the law can be ignored--we believe it
important to quote the United States Supreme Court on this
subject:

[[Page H5141]]

``While the Court has utilized the `rule of reason' in
evaluating the legality of most restraints alleged to be
violative of the Sherman Act, it has also developed the
doctrine that certain business relationships are per se
violations of the Act without regard to a consideration of
their reasonableness. In Northern Pacific R. Co. v. United
States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545
(1958), Mr. Justice Black explained the appropriateness of,
and the need for, per se rules:''
`` `(T)here are certain agreements or practices which
because of their pernicious effect on competition and lack of
any redeeming virtue are conclusively presumed to be
unreasonable and therefore illegal without elaborate inquiry
as to the precise harm they have caused or the business
excuse for their use. This principle of per se
unreasonableness not only makes the type of restraints which
are prescribed by the Sherman Act more certain to the benefit
of everyone concerned, but it also avoids the necessity for
an incredibly complicated and prolonged economic
investigation into the entire history of the industry
involved, as well as related industries, in an effort to
determine at large whether a particular restraint has been
unreasonable--an inquiry so often wholly fruitless when
undertaken.' ''
``It is only after considerable experience with certain
business relationships that courts classify them as per se
violations of the Sherman Act. See generally Van Cise, The
Future of Per Se in Antitrust Law, 50 Va.L.Rev. 1165 (1964).
One of the classic examples of a per se violation of Sec. 1
is an agreement between competitors at the same level of the
market structure to allocate territories in order to minimize
competition. Such concerted action is usually termed a
`horizontal' restraint, in contradistinction to combinations
of persons at different levels of the market structure, e.g.,
manufacturers and distributors, which are termed `vertical'
restraints. The Court has reiterated time and time again that
`(h)orizontal territorial limitations . . . are naked
restraints of trade with no purpose except stifling of
competition.' White Motor Co. v. United States, 372 U.S. 253,
263, 83 S. Ct. 696, 702, 9 L.Ed.2d 738 (1963). Such
limitations are per se violations of the Sherman Act. See
Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 20
S.Ct. 44 L.Ed 136 (1989), aff'g 85 F. 271 (C.A.6 1898) (Taft,
J.); United States v. National Lead Co., 332 U.S. 319,67
S.Ct. 1634, 91 L.Ed. 2077 (1947); Timken Roller Bearing Co.
v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed.
1199 (1951); Northern Pacific R. Co. v. United States,
supra; Citizen Publishing Co. v. United States, 394 U.S.
131, 89 S.Ct. 927, 22 L.Ed.2d 148 (1969); United States v.
Sealy, Inc., 388 U.S. 350, 87 S.Ct. 1847, 28 L.Ed.2d 1238
(1967); United States v. Arnold, Schwinn & Co., 388 U.S.
365, 390, 87 S.Ct. 1856, 1871, 18 L.Ed.2d 1249 (1967)
(Stewart, J., concurring in part and dissenting in part);
Serta Associates, Inc. v. United States, 393 U.S. 534, 89
S.Ct. 870, 21 L.Ed.2d 753 (1969), aff'g 296 F.Supp. 1121,
1128 (N.D.Del.1968).'' (United States v. Topco Associates,
Inc., 405 U.S. at 607-608 (emphasis added))
The Big Seven's carving up of geographic markets into the
current Fortress Hub system is nothing more than a naked
horizontal restraint repeatedly condemned by the Supreme
Court as a per se violation of the Sherman Act.
Put in terms the average citizen understands--Could
McDonald's tell Burger King: We won't compete in Atlanta if
you won't compete in Chicago? Could Ford tell GM: We won't
sell Fords in Michigan if you won't well Chevys in Illinois?
The answer is clearly no. Each would be a horizontal market
restraint and a per se violation of the Sherman Act just as
the Big Seven's Fortress Hub system--and their refusal to
compete in each other's hub market--is a horizontal market
restraint and a per se violation of the Sherman Act.
The law is equally clear it is not necessary to demonstrate
a formal written agreement among the Big Seven to carve up
the geographic Fortress Hub market in order to find a
conspiracy in violation of the Sherman Act. The existence of
such an agreement or arrangement can be inferred from the
course of conduct of the members of the industry. Norfolk
Monument Company v. Woodlawn Memorial Gardens, 394 U.S. 700,
704 (1969); American Tobacco Company v. United States, 328
U.S. 781, 809-810 (1946); InterstateCircuit v. United States,
306 U.S. 208, 221, 226-227 (1939).
7. The Metropolitan Chicago Market: An Egregious Example of
the Geographic Market Allocation and Refusal to Compete--``If
You Build It, We Won't Come.''
A particularly egregious implementation of this horizontal
agreement not to compete in each other's Fortress Hub markets
can be found in the major airlines' announced refusal to use
a new major airport in the metropolitan Chicago. The most
visible manifestation of their refusal to compete in the
Chicago market an be found in letters written by sixteen
Chief Executive Officers (CEOs) of the major airlines to
Illinois Governor Jim Edgar and his successor George Ryan. In
those letters--drafted in coordination with representatives
of the City of Chicago and the Air Transport Association--the
major airlines tell the Illinois Governor that they will
refuse to use the proposed new metropolitan Chicago airport:
``We are writing to express our concerns about further
planning and development of the so-called Third Chicago
Airport. It is our understanding that the State of Illinois
will not proceed with the construction of a third airport
without the support of the airlines. This letter is intended
to inform you that the airlines oppose further planning and
construction of this facility . . .
Chicago area news media have characterized the major
airlines' refusal to use a new airport as ``If you build it,
we won't come.'' In reality, this collective refusal to use a
new regional airport is nothing more than a manifestation of
the major airlines' horizontal market agreement not to
compete in any significant way with United and American in
their dominant Chicago market. This refusal by major airlines
such as Delta, Northwest, USAir, and Continental to use new
metropolitan Chicago airport capacity to compete in
metropolitan Chicago is but an individual example of the per
se antitrust violation of allocating geographic markets by
the major airlines.
8. The Fortress Hub System and the Big Seven's Collective
Refusal to Compete in Each Other's Fortress Hub Markets--as
Illustrated by Their Collective Refusal to Use the New South
Suburban Airport--Represent Serious Violations of Federal
Law.
These clear violations by the Big Seven airlines in
creating and maintaining the Fortress Hub system and the
refusal of the Big Seven to compete in each other's markets
represent serious violations of the antitrust laws. If the
GAO and IDOT estimates are accurate, nationally the Fortress
Hub system literally illegally steals several billion dollars
per year from the nation's air travelers--several hundred
million dollars in the Chicago area alone.
Because these antitrust violations are so blatant, it is
important for the public to know the significant sanctions
and remedies available to cure these violations.
Section 1 of the Sherman Act provides:
Every contract, combination in the form of trust or
otherwise, or conspiracy, in restraint of trade or commerce
among the several States, or with foreign nations, is hereby
declared to be illegal. Every person who shall make any
contract or engage in any combination or conspiracy hereby
declared to be illegal shall be deemed guilty of a felony,
and, on conviction thereof, shall be punished by fine not
exceeding $10,000,000 if a corporation, or, if any other
person, $350,000, or by imprisonment not exceeding three
years, or by both said punishments, in the discretion of the
court. (Title 15 United States Code Sec. 1 (emphasis added))
Section 2 of the Sherman Act provides:
Every person who shall monopolize, or attempt to
monopolize, or combine or conspire with any other person or
persons, to monopolize any part of the trade or commerce
among the several States, or with foreign nations, shall be
deemed guilty of a felony, and, on conviction thereof, shall
be punished by fine not exceeding $10,000,000 if a
corporation, or, if any other person, $350,000, or by
imprisonment not exceeding three years, or by both said
punishments, in the discretion of the court. (Title 15 United
States Code Sec. 2 (emphasis added))
Section 4 of the Act provides civil injunction remedies and
mandates the Department of Justice to ``institute proceedings
in equity to prevent and restrain such violations'':
The several district courts of the United States are
invested with jurisdiction to prevent and restrain violations
of sections 1 to 7 of this title; and it shall be the duty of
the several United States attorneys, in their respective
districts, under the direction of the Attorney General, to
institute proceedings in equity to prevent and restrain such
violations. (Title 15 United States Sec. 4 (emphasis added))
Section 15 provides that any person injured by the
violations of the antitrust laws can recover treble (triple)
damages for the monetary losses caused by the violations.
[A]ny person who shall be injured in his business or
property by reason of anything forbidden in the antitrust
laws may sue therefore in any district court of the United
States in the district in which the defendant resides or is
found or has an agent, without respect to the amount in
controversy, and shall recover threefold the damages by him
sustained, and the cost of suit, including a reasonable
attorney's fee. (Title 15 United States Code Sec. 15)
In summary, the statutory sanctions for these antitrust
violations are significant. Thus far, federal Department of
Justice officials have been unwilling to initiate antitrust
enforcement proceedings to break up the Fortress Hub monopoly
of the Big Seven.
9. The Major Airlines Geographic Market Allocation--A Per
Se Violation of the Antitrust laws--Is Not Immunized by the
``Noerr-Pennington'' Doctrine.
The major airlines' have engaged in this de facto Fortress
Hub geographic market allocation scheme for more than a
decade. It is likely that the airlines will assert that their
collective refusal to compete in the metropolitan Chicago
market--and the manifestation of that refusal by their
letters to Governors Edgar and Ryan--is immunized from
antitrust law enforcement by the ``Noerr-Pennington''
doctrine. That doctrine immunizes antitrust violations where
the principal vehicle for achieving the monopolistic goal is
political expression--i.e., lobbying government.
But the post-Noerr-Pennington case law makes clear that
where a business arrangement--that otherwise violates the
antitrust laws--has one component that involves the exercise
of First Amendment speech, there is no immunity from
antitrust enforcement under the ``Noerr-Pennington''
doctrine. See Allied Tube & Conduit Corp. v. Indian Head,

[[Page H5142]]

Inc., 486 U.S. 492, 505-506 (1988); FTC v. Superior Court
Trial Lawyers Ass'n, 493 U.S. 411, 423-426 (1990); Sandy
River Nursing Care v. Aetna Casualty, 985 F.2d 1138, 1142-43
(1st Cir. 1993); In re Brand Name Prescription Drugs
Antitrust Litigation, 186 F.3d 781, 788-789 (7th Cir. 1999).
10. The Major Airlines Geographic Market Allocation--A Per
Se Violation of the Antitrust laws--Is Not Immunized by the
``State Action Doctrine''.
It is common for those accused of antitrust violations to
claim that their monopolistic practices are immunized from
antitrust liability under the so-called ``state action''
doctrine of Parker v. Brown, 317 U.S. 341 (1943). The Supreme
Court's rationale in Parker for ``state action'' immunity was
the Congress had not intended in the Sherman Act to control
the activities of states in engaging in conduct directed by
the state legislature. 317 U.S. at 351-352.
But the Supreme Court has severely limited the availability
of ``state action'' immunity when invoked by private parties
such as the airlines in an attempt to immunize conduct
clearly violative of the antitrust laws. The Supreme Court
has established two requirements for ``state action''
immunity where private parties participate in the antitrust
violation: 1) the monopolistic activity must be clearly
expressed and affirmatively adopted as being the policy of
the State, and 2) the monopolistic activity must be actively
supervised by the State itself. Federal Trade Commission v.
Ticor Title Insurance Co, 504 U.S. 621, 633-634 (1992);
Patrick v. Burget, 486 U.S. 94, 101-102 (1988); California
Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445
U.S. 97, 105-106 (1980).
In the case of Fortress O'Hare and the collective campaign
of United, American and Chicago to keep significant new hub-
and-spoke competition from coming into the metro Chicago
market, there is no question that the ``state action''
defense does not apply. First, the State of Illinois has not
authorized the Fortress O'Hare monopoly maintained by United
and American and has actively spoken out against the monopoly
problem there. Second, the State is not actively supervising
and approving the anti-competitive conduct by United and
United and American and Chicago.
11. Federal Taxpayer Funds May Have Been Used to Suppress
Competition and Violate the Antitrust Laws in the Chicago
Market.
As stated above, other major airlines through the (ATA),
United and American (the dominant carriers at O'Hare) have
engaged in a concerted effort to defeat construction of a new
South Suburban Airport, an airport that would provide
significant capacity opportunities for major new competition
to enter the Chicago market. United executives have privately
stated their goal as ``Kill Peotone''.
United and American have been assisted in their ``Kill
Peotone'' (and thus kill new competitive capacity) campaign
by representatives of the City of Chicago--including
Chicago's consultants. Chicago's consultants have been paid
several million dollars in consulting fees to assist Chicago
and United and American in expanding O'Hare and in
obstructing development of a new South Suburban Airport.
Much of the money paid to these consultants has come from
either: (1) federal Passenger Facility Charge (PFC) funds (2)
federal Airport Improvement Program (AIP) funds, or (3)
federal tax subsidies for municipal for municipal airport
bonds (``GARBs'' General Airport Revenue Bonds). Not only are
the airlines and Chicago engaged in a monopolistic
arrangement designed to prevent new competition from entering
the Chicago market (i.e., through the new airport), but much
of the money to implement this illegal arrangement is coming
from federal taxpayer dollars. The GAO and the Department of
Justice should be asked to conduct an independent audit of
all PFC, AIP, and GARB expenditures at O'Hare to determine if
any federal funds wee used as part of a campaign to ``Kill
Peotone'' and to assist in the violation of federal antitrust
laws.
12. Federal Officials Have Participated in and Supported
the Big Seven's Illegal Monopolistic Arrangement to Refuse to
Compete in the Chicago Market.
Not only have federal funds been used to support the major
airlines illegal monopolistic arrangement to refuse to
compete in the Chicago market, but it appears that federal
officials within the Administration have worked with the
major airlines and Chicago to assist in this antitrust
arrangement to prevent the development of a new airport in
metropolitan Chicago. For the last several years, federal
administration officials--several of whom are former Chicago
officials who worked for the Chicago Aviation Department--
have blocked development of the new South Suburban Airport
through a series of spurious legal claims that federal law
requires that a ``consensus'' must exist between the State of
Illinois and the City of Chicago before a new metropolitan
airport can be constructed. No such legal requirement exists.
Because of the active participation of key figures in the
current administration in promoting and supporting the
continued blockage of new airport development in metropolitan
Chicago--in concert with the illegal refusal of the major
airlines to compete in the Chicago market by using the new
airport--and impartiality and lack of bias of the
Administration in conducting law enforcement in this area is
suspect. The Attorney General should be asked to appoint an
independent prosecutor to conduct the antitrust investigation
and to undertake all appropriate actions needed to correct
the ongoing antitrust violations.
13. Defining Essential Remedies--A New Regional Airport
With Sufficient Capacity to Support New Competitive Hub-And-
Spoke Operations.
There have been two ``remedies'' asserted to eliminate the
monopoly dominance of Fortress O'Hare in the Chicago market.
The first--eliminating slot restrictions at O'Hare--was
proposed and passed by Congress this year. According to
proponents of lifting the slot limits, elimination of slot
controls would bring new competition into O'Hare.
A. Lifting the Slot Limits Was an Unmitigated Disaster.
At the time the federal laws lifting the slot limits was
passed, Illinois Senator Peter Fitzgerald and Congressman
Henry Hyde both voted against the bill. They argued that the
slot limitations were not an artificial constraint but a
recognition of the already exhausted limited capacity of
O'Hare. They argued that lifting the slots would be a
disaster because: (1) added flights should lead to a massive
delay gridlock at O'Hare, and (2) that even if there were any
additional capacity, that capacity would be rapidly consumed
by American and United. Under these circumstances, they
argued that lifting the slot limits would simply expand
United's and American's monopoly--not increase competition.
Senator Fitzgerald and Congressman Hyde can rightfully say:
I told you so. On April 20, 2000 United and American
announced their intent to add 400 new daily flights to
O'Hare. The sad reality is that O'Hare does not have the
capacity for these 400 new flights. But Fitzgerald's and
Hyde's point was made; whatever arguable minor incremental
capacity exists at O'Hare (if any), it has been rapidly
consumed by United and American--not used by new competition.
Instead of reducing the monopoly, the new federal law has
helped United and America expand the monopoly.
United's and American's actions--coupled with the limited
capacity of O'Hare--illustrate's salient point. There simply
is not enough capacity at O'Hare to bring any significant new
competition into O'Hare. Any new competitive entry will be
token at best and not provide meaningful competition to the
hub-and-spoke dominance of United and American.
Lifting the slot limit, coupled with United and American's
actions to jam more than 400 new flights into O'Hare also
means massive new delay increases for the traveling public
this Summer. To illustrate these points and to demonstrate
why the recently passed federal legislation makes matters
much worse at O'Hare requires a brief analysis of the related
issues of capacity and delay at airport--particularly O'Hare.
FAA, the airlines, Chicago and IDOT define capacity as the
number of operations that can be processed at an airport at
an acceptable level of delay. There is a recognition that
there is a difference between absolute maximum physical
throughput and a lower level of operations that can be put
through without experiencing intolerable levels of delay and
cancellations. As stated by the City of Chicago:
``The practical capacity of an airfield will be defined as
the maximum level of average all-weather throughput
achievable while maintaining an acceptable level of delay.''
``Ten minutes per aircraft operation will be used at the
maximum level of acceptable delay for the assessment of the
existing airfield's capacity, subject to future levels of
forecast demand. This level of delay represents an upper
bound for acceptable delays at major hub airports.''
This relationship between maximum physical throughput and
practical, delay-sensitive capacity is illustrated in a FAA
chart copied from an FAA report on the subject, Airfield and
Airspace Capacity/Delay Policy Analysis, FAA-APO-81-14.
This relationship holds true whatever the input data as to
the level of demand or whatever the capacity of the airport
under study. Once the demand reaches a point approaching the
physical capacity of the airport the delay levels for all
traffic at the airport rise geometrically. The acceptable or
``practical capacity'' of the airport is that level where
delays are acceptable. To push more traffic beyond that point
is a certain invitation to massive delays, major
cancellations, and gridlock.
At one point FAA defined the acceptable level for practical
capacity of an airport as four minutes average annual delay.
That translated into about a 30-minute delay in peak periods.
Now FAA, IDOT and Chicago defined the acceptable level of
delay to define practical capacity as 10 minutes average
annual delay. This translates (in equivalent terms) into more
than an hour delay in peak periods.
What is important to emphasize is that all FAA and
chicago--and most likely Booz-Allen and United and Ameican--
runs of the SIMMOD model for O'Hare show average annual delay
at O'Hare is currently in excess of 10 minutes average annual
delay--already above acceptable capacity limits without
adding more flights. FAA and Chicago and United and American
all know that a push 400-500 new flights per day into O'Hare
is going to lead to: (1) massive increases in delays and (2)
widespread cancellations. FAA (USDOT) A Study of the High
Density Rule

[[Page H5143]]

illustrates the massive delay increase that adding just a few
flights at O'Hare beyond the slot limits will do to all
passengers at O'Hare. This analysis shows that adding 400-500
flights per day will lead to disastrous delays for all
passengers--more than doubling the delays for all passengers,
not just those who are on the new additional flights.
We anticipate that FAA and United and American will claim
that the delay and capacity results of DOT in 1995 have been
changed because of capacity improvements at O'Hare in
intervening years. But if so, a few questions need answering.
What are the capacity improvements since 1995? How much new
capacity has been provided? What will be the capacity/delay
numbers (comparable to DOT's 1995 analysis) with the new
capacity? Why were there no public hearings and environmental
disclosure on these capacity improvements?
We suspect the answer is that there have not been any
capacity changes at O'Hare since 1995 and DOT's numbers
remain valid. Conversely, if there have been capacity
changes, FAA has failed to inform both affected elected
officials (e.g., Congressman Hyde and Senator Fitzgerald) and
they have failed to tell the public and give the public an
opportunity to be heard.
There is another important point to emphasize about this
throughput/delay relationship shown on the FAA charts. Where
the airport is at the limits of acceptable delays--i.e., the
practical capacity limit--very small shifts in either traffic
demand or capacity can dramatically increase delays for all
passengers. Thus a small increase in traffic demand beyond
the practical capacity limit will generate huge increases in
delays for all passengers. Similarly, a slight decrease in
capacity--such as experienced this past year when regional
jet pilots were refusing Land-And-Hold-Short for safety
reasons--can dramatically increase delays with little or no
increase in throughput. The point here is that O'Hare is
already at the breaking point--brought there by the
resistance of Chicago and the Fortress Hub airlines at O'Hare
(United and American) to the building of a new regional
airport. O'Hare cannot handle 400-500 new flights per day and
United and American know it. Their own SIMMOD analysis tells
them that.
Why then do United and American announce a literally
foolhardy plan to jam 400-500 flights into O'Hare--an
announcement made the same day that United's and American's
front organization (the Civic Committee) calls for a new
runway at O'Hare? By deliberately creating chaos at O'Hare,
United and American will then be able to say that delays are
at crisis levels and we must immediately build a new runway
at O'Hare.
B. The ``Point-To-Point'' Shell Game: Building the South
Suburban Airport as a ``Point-To-Point'' Airport Will Not
Break the Hub-And-Spoke Monopoly of Fortress O'Hare.
The heart of the monopoly overcharges to travelers in the
Chicago market is the absence of competition in the hub-and-
spoke market in Chicago. None of the other Big Seven will
come into the Chicago market to establish a competitive hub-
and-spoke operation.
United and American propose using close to 10 billion
dollars (much of it in federal funds) to expand United and
American's hub-and-spoke empire at Fortress O'Hare. In an
attempt to expand their monopoly and prevent new competition
from entering the Chicago market, United and American (along
with the ``Civic Committee'' and the Chicagoland Chamber)
have sought to distract attention by suggesting a south
suburban airport in Chicago as a ``point-to-point'' airport--
not unlike Midway. United and American argues that O'Hare
should be the only ``hub-and-spoke'' airport in metropolitan
Chicago.
By shaping the argument in this fashion, United and
American guarantee that they will be allowed to continue and
dramatically expand their Fortress Hub monopoly at O'Hare.
According to their arguments, the lion's share of all the
origin-destination traffic in the region--and all of the
connecting and international traffic--should go to the sole
hub-and-spoke airport in the region: O'Hare. Any minor
overflow of ``point-to-point'' origin-destination traffic
that Midway could not handle could be addressed in a small
``point-to-point'' airport like the South Suburban Airport or
Gary.
What United and American gloss over is the fact there is
plenty of competition in the Chicago market in point-to-point
service. The real lack of competition in the Chicago market
is in the lack of additional hub-and-spoke competition to
challenge the hub-and-spoke duopoly of United and American at
Fortress O'Hare. It is this market dominance of the hub-and-
spoke market--not the point-to-point--where lack of
competition gouges the business traveler and the traveler
from ``spoke'' cities. There is a desperate need for new
competitive hub-and-spoke service in the Chicago market and
the place to put that hub-and-spoke is the new South Suburban
Airport.
No federal administration officials appear to be examining
whether spending 10 billion dollars (much of it from federal
taxpayers) at O'Hare makes economic sense when much more new
capacity to support competitive hub-and-spoke operations can
be constructed at a new metropolitan airport for less than
half the cost. Nor are federal officials examining whether
the use of billions of dollars of federal taxpayer funds to
expand United and American's hub-and-spoke duopoly at
Fortress O'Hare--essentially using billions of dollars of
federal taxpayer funds to subsidize expansion of monopoly
power--is proper use of federal funds.
C. A New Runway at O'Hare is Intended to Increase Capacity
to Expand United and American's Monopoly Power.
As discussed above, the airlines' current public relations
argument is that the lion's share of all the origin-
destination traffic in the region (and all of the connecting
and international traffic) should go to the sole hub-and-
spoke airport in the region (O'Hare). Any minor overflow of
point-to-point origin-destination traffic that a dramatically
expanded O'Hare and Midway could not handle (if any) could be
addressed in a small point-to-point airport like the South
Suburban Airport or Gary.
Paralleling this argument is the claim by the airlines
allies that a new runway at O'Hare is needed to ``reduce
delays''. They claim that a new runway would not increase
O'Hare capacity but simply reduce delays.
Yet an analysis using FAA's own capacity analysis standards
and criteria demonstrates that a new runway at O'Hare would
substantially increase the capacity of the airport. As
discussed above, the concepts of capacity and delay are
closely interrelated. The FAA and Chicago both define
capacity as that level of aircraft operations that can be
processed at an airport at an acceptable level of delay.
The FAA's published graphic showing the relationship of
capacity and delay illustrates a how a so-called ``delay
reduction'' at one level of traffic results in an increase in
capacity at the airport to accommodate additional levels of
traffic.
This capacity increase at O'Hare--by building a runway to
``reduce delay''--would dramatically expand American's and
United's hub-and-spoke monopoly at Fortress O'Hare. Further,
it would virtually doom the economic justification for the
new south suburban airport because the new ``delay'' runway--
once built--could easily be used to carry the new additional
traffic for which the new airport was intended. Simply by
piecemealing incremental expansion at O'Hare, Chicago and
American and United can keep the region under the thumb of
the Fortress O'Hare monopoly.
14. United's and American's Fight to Preserve and Expand
Fortress Hub Monopoly Power at O'Hare has Grave Social,
Economic, Public Health, and Quality of Life Consequences for
the Region.
In their passion to expand Fortress O'Hare and defeat the
prospect of new hub-and-spoke competition coming into a new
airport, United and American have disregarded safety, public
health, and quality of life for the communities around
O'Hare. All parties are in agreement that growth in air
traffic should be accommodated with major increases in new
airport capacity in the metropolitan Chicago region.
The choices are stark: (1) a new regional airport which
will have an environmental land buffer three times the size
of O'Hare and plenty of capacity to accommodate new hub-and-
spoke competition or (2) an overstuffed O'Hare with no land
buffer and continued dominance of the metropolitan hub-and-
spoke market by United and American. But for the addiction to
monopoly revenues at Fortress O'Hare, the decision is
simple--send the traffic growth to a new environmentally
sound, competitively open new regional airport.
Instead we have United and American and their political
surrogates urging more air pollution, more noise, and more
safety hazards be imposed on O'Hare area communities--simply
to protect and expand the Fortress O'Hare monopoly. We now
live in a bizarre world where the desire to protect and
expand violations of antitrust law and illegal overcharges
trumps protection of public health, safety and quality of
life.
The consequences of these abuses of monopoly power for the
metro Chicago region are stark and severe:
O'Hare area communities will be subjected to more noise,
more air pollution, and more safety hazards because--under
the United, American, and Chicago proposal--all the
international, all the transfer traffic, and the lion's share
of the origin-destination traffic are jammed into an already
overstuffed O'Hare. Any new airport--even if built--will
simply receive the origin-destination overflow (if any) from
a vastly expanded O'Hare and Midway.
South Chicago and south suburban communities will continue
to suffer serious economic decline because the South Suburban
Airport--which should have been built years ago--lies hostage
to the unholy alliance struck between the monopoly interest
of United and American and the political pique of Chicago's
mayor. Residents of South and South Suburban Chicago
legitimately ask why United and American oppose the hundreds
of thousands of jobs and billions in economic benefits that
would accrue to this area if the new airport is built. Some
attribute United and American's position to racial intent.
More accurately, United and American are willing to ignore
the severe economic harm their monopolistic position inflicts
on an area with a significant African-American population if
that harm is a necessary consequence of preserving and
expanding their monopoly at Fortress O'Hare. In a world of
pure economic rationality, monopoly power and the social and
economic injustices incident to that monopoly power might be
excused as central to the maximization of profit. However, in
a world of

[[Page H5144]]

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 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.

[[Page H5145]]

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 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.

[[Page H5146]]

____
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 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

[[Page H5147]]

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 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

[[Page H5148]]

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 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

[[Page H5149]]

for judicial review of an order issued by the Administrator.
The bill provides that the bill may be reviewed pursuant to
the provisions contained at 49 U.S.C. Sec. 46110.
If the Administrator does not issue an order and judicial
review is not possible under this provision, then it is
possible that ``nonstatutory review'' may occur. When
Congress has not created a special statutory procedure for
judicial review, an injured party may seek ``nonstatutory
review.'' This review is based upon some statutory grant of
subject matter jurisdiction. Therefore, a party who wants to
invoke nonstatutory review will look to the general grants of
original jurisdiction that apply to the federal courts. It is
possible that an available basis for jurisdiction in this
case--if the Administrator does not carry out his/her
Congressional mandate--may be under the general federal
question jurisdiction statute which authorizes the federal
district courts to entertain any case ``arising under'' the
Constitution or the laws of the United States. An action for
relief under this provision is usually the most direct way to
obtain nonstatutory review of an agency action. Hence, it is
possible that an action could be brought under this statute
to compel the Administrator to comply with the provisions
contained in the bill.

conclusion

This memo has summarized staff discussion concerning
certain provisions contained in the proposed National
Aviation Capacity Expansion Act. Subsection (e) provides for
the Administrator's review of the Peotone Airport project.
Subsection (f) provides for the expansion of O'Hare. The
provisions appear to operate independently of each other, are
not drafted in parallel language, and provide different
directions to the Administrator. The Administrator is given
certain responsibilities under both subsections. Congress
possesses plenary oversight authority over federally funded
projects. This would provide oversight Administrator is given
certain responsibilities under both subsections. Congress
possesses plenary oversight authority over federally funded
projects. This would provide oversight over the Administrator
and his/her actions. A judicial proceeding may be possible
against the Administrator to compel the Administrator to
fulfill the statutory responsibilities provided by the bill.
____

Statement of U.S. Representative Jesse L. Jackson Jr. Before the U.S.
House Aviation Subcommittee--Wednesday, August 1st, 2001 Washington, DC

I want to thank Members of the House Aviation Subcommittee
for this opportunity to discuss Chicago's aviation future. As
you may know, I ran on this issue in 1995, and have supported
expanding aviation capacity by building a third regional
airport in Peotone, Illinois.
Let me begin with a personal anecdote that, from my
perspective, illustrates why we're here. I won my first term
in a special election and on December 14th, 1995 took the
Oath of Office. Congressman Lipinski, my good friend and
fellow Chicagoan whose district borders mine, was present and
his was the seventh or eighth hand I shook as a new Member.
He told me then: ``Young man, I want you to know that I can
be very helpful to you during your stay in Congress, but
you're never going to get that new airport you spoke about
during your campaign.''
Since then, Congressman Lipinski has been helpful and we've
worked together on many important issues. But, he's also made
good on his word to block a third airport.
It is this rigid stance by many Chicago officials that's
allowed a local problem to escalate into a national crisis.
Once the nation's best and busiest crossroads, O'Hare is now
its worst choke point--overpriced, overburdened and
overwhelmed.
And to think it was avoidable. This debate dates back to
1984 when the Federal Aviation Administration determined that
Chicago was quickly running out of capacity. The FAA directed
Illinois, Indiana and Wisconsin to conduct a feasibility
study for a new airport. The exhaustive study of numerous
sites concluded almost 10 years ago that gridlock could be
best avoided by building a south suburban airport. The State
of Illinois then drafted detailed plans for an airport near
Peotone.
Unfortunately, despite the FAA's dire warning and the
State's best efforts, I watched in amazement as the City of
Chicago went to extremes to thwart and delay any new
capacity.
In the late 1980s, Mayor Daley mocked the idea of a third
airport. By 1990, the City did an about-face and proposed
building a third airport within the City. The City even
initiated federal legislation creating the Passenger Facility
Charge (PFC) to pay for it. But two years later the City
reversed itself again and abandoned the plan, yet continued
to collect $90 million a year in PFCs. This summer, the City
told the Illinois Legislature that O'Hare needed no new
capacity until the year 2012, then, in yet another reversal,
three weeks ago declared O'Hare needed six new runways.
As the City was spending hundreds of millions of dollars on
consultants to tell us that the City didn't, did, didn't, did
need new capacity, it continued to be consistent on the one
thing--fighting to kill the third airport.
Sadly, that opposition was never based on substantive
issues--regional capacity, public safety or air travel
efficiency. Instead it was rooted in protecting patronage,
inside deals and the status quo. In fact, earlier this year
the Chicago Tribute won a Pulitzer Prize for documenting the
``stench at O'Hare.''
Still, for eight years, City Hall leveraged the Clinton FAA
to stall Peotone. The FAA, ignoring its own warnings of
approaching gridlock, conspired with the city to:
(1) Mandate ``regional consensus,'' thus requiring Chicago
mayoral approval for any new regional airport;
(2) Remove Peotone from the NPIAS list in 1997, after it
emerged as the frontrunner. Peotone had been on the NPIAS for
12 years;
(3) Hold up the Peotone environmental review from 1997 to
2000.
In short, the same parties who created this aviation mess
are now saying ``trust us to clean it up'' with H.R. 2107.
But their hands are too dirty and their interests are too
narrow. Proponents of this legislation claim to be taking the
high road. But this is a dead end.
Fortunately, there is a better alternative. Compared to
O'Hare expansion, Peotone could be built in one-third the
time at one-third the cost--both important facts given that
the crisis is imminent and that the public will ultimately
pay for any fix.
Site selection aside, however, there is yet another, even
bigger problem with H.R. 2107. It is the United States
Constitution.
H.R. 2107 strips Illinois Governor George Ryan of
legitimate state power in an apparent violation of the
``reserved powers'' clause of the 10th Amendment.
Under the 10th Amendment, Congress cannot command Illinois
to affirmatively undertake an activity, nor can it intrude
upon Illinois' prerogative to exercise or delegate its power.
As stated by the United States Supreme Court: ``[T]he Framers
explicitly chose a Constitution that confers upon Congress
the power to regulate individuals, not States . . . We have
always understood that even where Congress has the authority
under the Constitution to pass laws requiring or prohibiting
certain acts, it lacks the power directly to compel the
States to require or prohibit those acts.'' [New York v.
United States, 1992]
Supporters have cited the Commerce Clause in defending his
legislation. But the Supreme Court in Printz v. United States
specifically emphasized the 10th Amendment barrier to
Congress intruding on a state's sovereignty by saying that it
could not be avoided by claiming either, one, that
congressional authority was pursuant to the Commerce Power,
or, two, that federal law ``preempted'' state law under the
Supremacy Clause.
Chicago has acknowledged Illinois' authority to build and
operate airports by express statutory delegation through the
Illinois Aeronautics Act, including the requirement that the
State approve any airport alterations. Under the 10th
Amendment, if Congress strips away a key element of the
Illinois law, Chicago's attempt to build runways would likely
be ultra vires (without authority) under Illinois law.
Moreover, H.R. 2017 converts the concept of dual
sovereignty into tri-sovereignty, by going beyond states'
rights to city rights. It gives Mayor Daley (and the other
local officials in charge of the 68 largest airports in the
country) a greater say over national aviation policy than the
federal government or the fifty governors.
Indeed, H.R. 2107 sets federalism on its head. It makes
about as much sense as putting the local police department in
charge of national defense.
Such legislation won't improve aviation services. In fact,
it increases the likelihood for a constitutional challenge
that will further prolong this crisis.
So, from a practical standpoint, I urge the subcommittee to
reject this measure, to reject cramming more planes into one
of the nation's most overcrowded airport, to reject turning
O'Hare into the world's largest construction site for the
next 20 years, and to reject sticking the taxpayers with an
outrageous bill.
I strongly urge the committee to reject this unprecedented,
unwise and unconstitutional attack against our fifty states
and our Founding Fathers. Thank you.
____

Suburban O'Hare Commission, February 13, 2002--A better Plan for Curing
the O'Hare Airport Bottleneck

Chicago--A plan for relieving the Chicago aviation
bottleneck was unveiled today that costs less, is more
efficient, less destructive and can be realized quicker than
a ``compromise'' plan that Chicago Mayor Richard M. Daley and
Illinois Gov. George Ryan are trying to rush through
Congress.
The plan was crafted by the Suburban O'Hare Commission, a
council of governments representing a million residents
living around O'Hare Airport.
The plan includes runway, terminal and other improvements
at O'Hare International Airport, to make it more efficient,
competitive and convenient. The plan also includes
alternatives to the costly and destructive ``western access''
proposed in the Daley-Ryan plant. The centerpiece of the plan
remains, as it has for well over a decade, a major hub
airport in the south suburbs that had been urged by experts
and government officials from three states, and would be
operational now if not for obstruction from Chicago Mayor
Richard M. Daley. The plan provides for many more flights to
the region, and, consequently, many more jobs.
``We always have been in favor of a strong O'Hare Airport
because of its importance to

[[Page H5150]]

our communities and to the regional economy,'' said John
Geils, SOC Chairman and president of the Village of
Bensenville. ``This will come as a surprise only to those who
have been taken in by the rhetoric of our opponents, who
maliciously tried to portray us as anti-O'Hare zealots,
willing to damage or even destroy O'Hare. Our plan will
expand the region's aviation and economic growth; the Daley-
Ryan plan will stifle that growth.
``The claimed benefits--including delay reductions, job
increases, improved safety, greater competition and less
noise--of the Daley-Ryan O'Hare expansion plan are untrue. We
have a plan that is better for the entire region, and not
just for Chicago City Hall and its big business friends.''
Geils said.
Among the improvements are a realistically modernized
O'Hare, instead of the impossible attempt by Daley and Ryan
to stuff ten pounds of potatoes into a five-pound sack.
Terminals would be updated, with an eye to matching them with
capacity and making them more user friendly. Selected runways
would be widened to accommodate the large new jets, such as
the A380X, thus increasing the number of passengers the
airport can serve, without increasing air traffic. Western
access and a bypass route would be built on airport property,
skirting O'Hare to the south--as originally planned, thus
avoiding the destruction of uncounted homes and businesses,
as under the Daley-Ryan plan.
The SOC Solution also would increase competition at O'Hare,
through terminal and other facilities improvements so that
air travelers using the competition are not treated as
second-class customers. Funding of O'Hare improvements would
be disconnected from a complicated bonding scheme that allows
United and American airlines to become more entrenched and to
continue to charge anti-competitive fares. In addition, some
of the lucrative gambling revenues, now going to enrich
political insiders, would be used for a competitive makeover
of O'Hare.
SOC's plan also would provide better safety and
environmental protections. Every home impacted by noise at
O'Hare and Midway would be soundproofed, instead of a select
few as provided under the current, flawed standards adopted
by Chicago. O'Hare neighbors would be spared the
concentration of air pollution brought by a doubling of
flights at what is already the state's largest single air
polluter. Under the Daley-Ryan plan, O'Hare neighbors would
find themselves in federally required crash zones at the end
of runways, forcing them to either give up their homes or
live in devalued property in great risk. Because most of the
region's air traffic growth would use the South Suburban
airport where pollution and safety buffers are required under
current federal standards, fewer total people in the region
would be subjected to health and safety risks.
Key to the SOC Solution is the construction of a truly
regional hub airport in the South Suburbs, rather than an
inadequate ``reliever'' airport as envisioned under the
Daley-Ryan plan. Just as New York City and Washington, D.C.
have more than one hub airport, a true regional airport in
the South Suburbs would give Chicago the kind of potential it
needs with three hub airports (O'Hare, Midway and Peotone) to
maintain its aviation dominance for decades. Despite the
long-made assertions by entrenched interests, such as United
and American airlines, that the Chicago area didn't need a
second hub airport, Midway already is developing into a hub
simply because of market forces. With Midway reaching
capacity in just a few years, and O'Hare already at capacity,
the sounds of ``no one will come to Peotone'' no longer are
heard.
Finally, the SOC Solution will protect taxpayers by
creating an oversight board of improvements at all airports,
including the south suburban airport and Midway.
``The SOC Solution is not a fragmented plan that simply
focuses on O'Hare, which under the Daley-Ryan proposal is
merely an instrument for extending the political and economic
might of a select few,'' said Geils. ``Ours is a plan for a
regional airport system--one that is based on common sense
and what is fair and good for the entire public.''

COMPARISONS OF THE DALEY-RYAN PLAN AND THE SOC SOLUTION
------------------------------------------------------------------------
Daley-Ryan O'Hare
plan SOC Plan
------------------------------------------------------------------------
Provides Immediate Solution No--runways will not Yes--delays
to the Delay Problem at be built for years addressed
O'Hare?. and by the time immediately by FAA
they are built, recommended demand
delays will management
increase with techniques such as
increased traffic proposed for
growth. LaGuardia.
Which Plan Provides Greatest Max increase of 1,600,000 operations
Capacity Growth for Region?. 700,000 operations; capacity at South
likely much less. Suburban Airport--
far more than Daley-
Ryan plan.
Which Plan Produces Greatest Daley-Ryan O'Hare Wide open
Opportunity for New plan solidifies and opportunity for
Competition and Lower expands United- major competition--
Fares?. American monopoly both at O'Hare and
dominance--hundreds at South Suburban
of millions in Airport.
losses to Chicago
travelers each year.
Which Plan Provides Greater Daley-Ryan O'Hare Suburban O'Hare
Job Growth?. plan job growth of Commission plan
195,000 jobs provides 1.6
dependent on million new
700,000 new operations capacity
operations capacity in addition to
at O'Hare--real O'Hare--far more
capacity unlikely jobs than Daley-
and far less jobs. Ryan O'Hare plan.
Which Plan Makes Peotone A No provision in SOC plan borrows
Reality?. Daley-Ryan O'Hare from idea by
plan to actually Senator Patrick
fund and build O'Malley to use
Peotone--an huge excess
exercise in gambling income now
political rhetoric going to political
with little insiders to fund
likelihood of Peotone
success. construction.
Which Plan Produces Less Daley-Ryan O'Hare Huge non-residential
Toxic Air Pollution Impact plan makes toxic land buffer at
on Surrounding communities?. emissions at O'Hare Peotone protects
much worse--900,000 public health and
flights to 1, prevents
600,000--no residential
environmental exposures.
buffer.
Which Plan Produces Less Daley-Ryan O'Hare Huge non-residential
Noise Impact on Surrounding plan makes aircraft land buffer at
communities?. noise at O'Hare Peotone protects
much worse--900,000 against residential
flights to 1, noise exposure.
600,000--no
environmental
buffer.
Which Plan is Safer?........ Daley-Ryan O'Hare SOC plan much safer
plan reduces safety because South
margins at O'Hare-- Suburban Airport
more congested site can address
airspace, less runway safety
safety on runways concerns much
and taxiways, easier than O'Hare
occupied runway because much more
crash zones. land available.
Which Plan Provides Justice Daley-Ryan O'Hare SOC plan insures
and Equity for the South plan guarantees construction of
Side and South Suburbs?. exactly what Daley major new airport
wants--an empty with adequate
cornfield at funding.
Peotone.
Which Plan Preserves State Daley-Ryan O'Hare SOC plan preserves
Law protections?. plan destroys state and protects state
law protections for law safeguards for
public, health, the our environment,
environment, the public health and
consumer. the consumer.
Which Plan Provides Greatest Daley-Ryan O'Hare SOC plan provides
Economic Benefits Over plan has huge costs much greater
Costs?. that likely far regional capacity,
exceed the economic eliminates the
benefits. (which delay problem in
are far less than the short and long
claimed). term, and can be
built far faster,
with far less cost.
Also provides much
greater potential
for new competition
and lower fares. A
much greater
economic bang for
far less bucks.
------------------------------------------------------------------------

THE DALEY-RYAN PLAN'S ALLEGED BENEFITS AND THE REALITY
------------------------------------------------------------------------
Daley-Ryan O'Hare Plan Claims Reality
------------------------------------------------------------------------
Delay Reduction Untrue. Daley-Ryan Total bad weather and good
O'Hare plan claims it reduces bad weather delays will increase
weather delays by 95% and overall dramatically under Daley-Ryan
delay by 79%. O'Hare plan.
Delay Savings Untrue. Daley-Ryan O'Hare Daley-Ryan O'Hare plan will
plan claims it will produce delay increase total delay costs by
savings of $370 million annually and hundreds of millions of
passenger delay savings of $380 dollars annually.
million annually.
Cost Claims Untrue. Daley-Ryan O'Hare Real Costs--$15 billion to $20
plan says cost is: $6.6 billion. billion.
Capacity Claims Untrue. Daley-Ryan Real Capacity of Daley-Ryan
O'Hare plan claims it will meet O'Hare plan:
aviation needs of Region.
Increase O'Hare passenger Falls far short of 76 million
``enplanements'' (boarding passengers) passenger capacity and far
from current 34 million to 76 million. short of capacity of 1,600,000
operations.
Increase O'Hare operational capacity Leaves region with huge
from 900,000 to 1,600,000 operations. capacity gap for both
passengers and aircraft
operations.
Peotone Claim untrue. Daley-Ryan O'Hare Daley-Ryan O'Hare plan destroys
plan says they will build Peotone. economic rationale and funding
for Peotone:
If Daley-Ryan O'Hare plan meets
its capacity claims, no
economic justification for
Peotone--not needed.
If Daley-Ryan O'Hare plan falls
short of capacity, $15 billion
to $20 billion spent at O'Hare
will exhaust federal and state
funding resources.
Jobs Claims untrue. Daley-Ryan O'Hare Actual jobs fall far short of
plan says it will create 195,000 jobs. the 195,000 jobs claimed
because of enormous capacity
shortfall; much greater job
growth under SOC alternative.
Financial Claims Untrue. Daley-Ryan Daley-Ryan O'Hare plan will
O'Hare plan says there is plenty of bankrupt federal airport aid
federal and airlines money to expand trust fund and United and
O'Hare and pay $15 billion to $20 American cannot afford
billion cost. billions in bonds.
Hiding the Data and Information. Daley- Daley and Ryan O'Hare plan
Ryan O'Hare plan claims based on slick stonewall on documents and
Power Point Slides--no backup data backing up their claims--
information provided. refuse to produce documents in
Freedom of Information
requests.
Monopoly Overcharge Problem. Daley-Ryan Daley-Ryan O'Hare plan will
O'Hare plan makes no mention of expand and strengthen the
monopoly overcharge problem at O'Hare-- monopoly hold United and
costing Chicago based travelers American have on Chicago
hundreds of millions of dollars per market--costing Chicago
year. As Governor-Elect George Ryan business travelers hundreds of
said, monopoly overcharges at O'Hare millions annually in
gouged travelers over $600 million per overcharges.
year.
Where is the Western Ring Road? Daley- Western Ring Road route pushed
Ryan O'Hare plan say western ring road west by Daley-Ryan O'Hare plan
is needed for O'Hare expansion; yet into valuable and important
refuse to disclose location, cost, and industrial and residential
impact on local jobs, industry, areas of Elk Grove Village and
housing. Bensenville--leading to huge
losses in jobs, tax revenues,
economic development and
residential quality of life.
Where are all the Terminals? Daley and Daley now says all but one of
Ryan say they have identified all the the new terminals shown on the
terminals needed for the Daley-Ryan Daley-Ryan O'Hare plan (new
O'Hare plan. Terminals 4 and 6) needed for
existing runways and that new
(as yet unidentified terminals
will be needed for Daley-Ryan
O'Hare plan--no locations
shown, unidentified billions
of dollars in additional
unstated costs.
Noise--the Daley Ryan New Math. Daley- There will be significantly
Ryan O'Hare plan says noise will be more noise at 1,600,000
less at 1,600,000 operations than at operations than at 900,000
900,000 operations. operations.
Toxic Air Pollution. Daley-Ryan O'Hare There will be significantly
plan makes no mention of toxic air more toxic air pollution at
pollution yet Ryan as Governor said 1,600,000 operations than at
O'Hare should not be expanded because 900,000 operations.
of toxic air pollution problem.

[[Page H5151]]

Benefit-Cost Analysis. Daley-Ryan Reality is that benefits of
O'Hare plan says it meets federal Daley-Ryan O'Hare plan may not
benefit-cost analysis requirements-- exceed the huge costs. It is
including requirement that federal also clear that placing the
government chose the alternative that new capacity at the new South
produces greatest net benefits. Suburban Airport rather than
an expanded O'Hare produces
far grater economic benefits
at far less cost than the
Daley-Ryan O'Hare plan.
Increased Safety Hazards. Daley and Daley-Ryan O'Hare plan creates
Ryan say their plan is safe. major safety hazards,
including: increase in traffic
incursions (collision risk),
destruction of safest runways
for bad weather winter storm
conditions (14/32s), high
congestion in O'Hare area air
space, risky runway protection
(crash zones) in occupied
areas.
Compliance With State Law. Daley and Daley and Ryan both know that
Ryan say that their plan complies with they (not some future
state law and that they are seeking governor) have both violated
federal preemption of state law only state law by failing to meet
to prevent upsetting Daley-Ryan deal the requirements of the
by a future governor. Illinois Aeronautics Act;
purpose of bill is to immunize
this illegality.
$15 Billion into the O'Hare Money Pit: Putting $15 or more billion
Problems of Corruption in Management dollars into the corrupt
of O'Hare. Daley and Ryan make no contract management system
mention of the history of rampant that infects Chicago public
corruption and kickbacks to Daley works awards--especially at
friends and cronies in O'Hare O'Hare, is pouring public
contracts or the need for safeguards resources into a cesspool. The
and reforms to insure the integrity of First Commandment of Chicago
the process. O'Hare contracts is that the
contractor has to hire one of
Daley's friends or political
associates on contract awards.
Economic Equity and Justice for the Daley-Ryan O'Hare plan calls
South Side and South Suburbs. Daley- for putting virtually all of
Ryan O'Hare plan offers little but the economic growth of
empty rhetoric for Peotone and south aviation demand at O'Hare--
suburban economic development. leaving South Side and South
Suburbs either empty promises,
or a white elephant token
airport.
------------------------------------------------------------------------

Grave Concerns Near O'Hare

(By Robert C. Herguth)

American Indian remains that were exhumed 50 years ago to
make way for O'Hare Airport might have to be moved again to
accommodate Mayor Daley's runway expansion plans.
That's disturbing to some Native Americans, who say they
want their ancestors and relics treated with greater respect.
And it's prompting local opponents of the proposed closure
of two O'Hare cemeteries--one of which has Indians--to
explore whether federal laws that offer limited protection to
Native American burial sites and artifacts could help them
resist the city's efforts.
``Maybe the federal law might come to our aid,'' said Bob
Placek, a member of Resthaven Cemetery's board who estimates
40 of his relatives, all German and German-American, are
buried there. ``The dead folks out there aren't trying to be
obstructionists, they're trying to rest in peace. . . . I
feel it's a desecration to move a cemetery. It's a disregard
for our family's history.''
Resthaven is a resting place for European settlers, their
descendants and, possibly, Potawatomi.
It seems unlikely federal law, specifically the Native
American Grave Protection and Repatriation Act, would lend
much muscle to those opposed to Daley's plan, which calls for
knocking out three runways, building four new ones and adding
a western entrance and terminal.
``Primarily, the legislation applies to federal lands and
tribal lands,'' said Claricy Smith, deputy regional director
for the Bureau of Indian Affairs.
Even if someone made the argument that O'Hare is
effectively federal land because it uses federal money, the
most Resthaven proponents could probably hope for is a short
delay, a say in how any disinterment takes place and, if they
are Indian, the opportunity to claim the bodies of Native
Americans.
``They've got a hard road,'' Smith said of those who might
try to halt a Resthaven closure on the basis of Indian
remains.
When O'Hare was being built five decades back, an old
Indian burial ground that had become a cemetery for the
area's white settlers was bulldozed. Some bodies were moved
to a west suburban cemetery and some, including an unknown
number of Indians, were believed to be transferred to
Resthaven, according to published accounts and those familiar
with local history.
``Ma used to talk about Indians being buried at
Resthaven,'' said the 44-year-old Placek, who believes the
Indians share a mass grave. His mother, who died in 1996,
also is buried at Resthaven. ``I used to hear as a little kid
Potawatomi'' were there.
Regardless of the tribe to which the dead belonged, the
Forest County Potawatomi Community of Wisconsin, one of
several Potawatomi bands relatively close to Chicago, plans
to get involved.
``It's concerning,'' said Clarice Ritchie, a researcher for
the community of about 1,000 who hadn't heard about the issue
until contacted by a reporter.
``At this stage of the game, who can determine who they
were specifically? But we run into this sort of circumstance
in many instances throughout the state of Wisconsin, and some
in Illinois, and we take care of them as if they were
relatives,'' she said. ``We're all related, we're all created
from God, so we do the right thing, we take care of anybody
and try to see that they're either not disturbed or properly
taken care of.''
``I guess we'd have to keep our mind broad as to what would
be done,'' Ritchie said. ``Naturally we don't like to see
graves disturbed, but somebody has already disturbed them
once. . . . I guess what I'd probably do is talk to the
tribal elders and spiritual people and other tribes who could
be in the area and come to a conclusion of what should be
done.''
Bill Daniels, one of the Potawatomi band's spiritual
leaders, said spirits may not look kindly on those who move
remains.
``It's not good to do that--move a cemetery or just plow
over it,'' he said.
Daley's plan, which still must be approved by state and
federal officials, also may displace nearby St. Johannes
Cemetery, which is not believed to have any Native American
bodies.
John Harris, the deputy Chicago aviation commissioner
overseeing the mayor's $6 billion project, said this is the
first he's heard that there might be Indian remains at
Resthaven, and city officials are trying to verify it.
``I have no reason to doubt them at this time, but I have
no independent knowledge,'' he said. But ``whether they're
Indians or not, we would exercise an extreme level of
sensitivity in the interest of their survivors.''
Resthaven, which is loosely affiliated with the United
Methodist Church, has about 200 graves, some of which date to
the 19th century. It's located on about 2 acres on the west
side of O'Hare, in Addison Township just south of the larger
St. Johannes.
Self-described ``advocate for the dead'' Helen Sclair has
heard there might be Indians buried at Resthaven, but she
suspects not all Native American remains were retrieved when
Wilmer's Old Settlers Cemetery was closed in the early 1950s
to make room for O'Hare access roads.
She said the Chicago region, which used to be home to
Potawatomi, Chippewa and other Indians, doesn't have enough
cemetery space, and the dead should be treated with more
respect.
``We don't have much of a positive attitude toward
cemeteries in Chicago,'' Sclair said. ``Do you know why?
Because the dead don't pay taxes or vote. . . . Well,
technically they don't vote.''
____

Rosemary Mulligan,

State Representative 55th District,

Des Plaines, IL, July 5, 2002.
Hon. Jesse L. Jackson, Jr.,
U.S. House of Representatives, Washington, DC.

Subject: Vote ``No'' on H.R. 3479

Dear Representative Jackson, Jr.: As an Illinois state
legislator, I would like to use this opportunity to express
my concern and opposition to the National Aviation Capacity
Act. The issue of expansion of Chicago O'Hare Airport is
extremely important but has been so misrepresented that I
believe it is imperative to make a personal plea on behalf of
my local residents to each member of the House of
Representatives. This plan in the form it has been presented
to you contains gross misrepresentations of fact and will
inflict harm on the over 100,000 constituents I have taken an
oath to protect.
You may not realize that ``Chicago'' O'Hare Airport is
virtually an outcropping of land annexed by the City of
Chicago that is over 90 percent surrounded by suburban
municipalities. It is the only major city airport where the
people directly impacted by airport activity do not elect the
mayor or city officials that make decisions about the
airport. Therefore, we have had little control or recourse
over what happens at the airport. This plan represents a
``deal'' between two men and has never been debated or voted
on by the Illinois General Assembly!
My family moved to Park Ridge in 1955, long before anyone
had an idea of what an overpowering presence O'Hare would
become. Unfortunately, the amount of land dedicated to the
airport set its fate long before the current crisis. Plainly
speaking, there isn't enough room to expand.
For the past several years, I and other legislators have
introduced nearly a dozen measures in the Illinois General
Assembly to conduct environmental studies, provide tax relief
for soundproofing, defend suburban neighborhoods from unfair
``land grabs,'' require state legislative approval of any
airport expansion and to generally protect the people we
represent whose residences abut airport property. Because of
the political make-up of our body and the great influence of
Chicago's mayor, we have been unsuccessful. Our efforts and
the health and safety of our constituents are ignored because
of politics.
Please, before you vote on HR 3479, consider the following
facts:
1. If the people who surround this airport could vote for
the mayor of the City of Chicago, an agreement to expand
O'Hare could not have been made. Whoever is mayor would have
to take into consideration his immediate constituency.
2. Thorough environmental studies are being blocked. There
are many documented health concerns related to current
pollution levels. 800,000 additional flights will nearly
double the environmental hazard.
3. The State of Illinois' rights are being trampled. The
House of Representatives vote is setting a precedent that may
impact your home state at some later date.

[[Page H5152]]

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.
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.

[[Page H5153]]

____
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 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

[[Page H5154]]

out by the FAA and other experts. The solution can be easily
administered by the FAA recognizing--as it has at LaGuardia--
that limits must be placed on uncontrolled airline desire to
overscheduled flights.
Should the short-term ``fix'' to the delays and congestion
include ``capacity enhancement'' through air traffic control
devices? Absent new runways, the FAA has encouraged and
permitted a variety of operational devices designed to allow
increased levels of departures and arrivals in a set period
of time. These procedures--known as ``incremental capacity
enhancement''--focus on putting moving aircraft closer
together in time and space--to squeeze more operations into a
finite amount of runways. Typically, this squeezing is done
in low visibility, bad weather conditions because these are
the conditions where FAA wants to increase capacity.
While the air traffic controllers remain mute on the safety
concerns raised by these procedures, the pilots sure have
not:
``We have seen the volume of traffic at O'Hare pick up and
exceed anyone's expectations, so much so, that on occasion
mid-airs were only seconds apart. O'Hare is at maximum
capacity, if not over capacity. It is my opinion that it is
only a matter of time until two airliners collide making
disastrous headlines.'' Captain John Teerling, Senior AA
Airline Captain with 31 years experience flying out of O'Hare
January 1999 letter to Governor Ryan (emphasis added)
Paul McCarthy, ALPA's [Airline Pilots Association]
executive air safety chairman, condemned the incremental
capacity enhancements as threats to safety. Each one puts a
small additional burden on pilots and controllers, he said.
Taken together, they reduce safety margins, particularly at
multiple runway airports, to the point that they invite a
midair collision, a runway incursion or a controlled flight
into terrain. Aviation Week, September 18, 2000 at p. 51
(emphasis added)
It is clear that FAA's constant attempts to squeeze more
and more capacity out of the existing overloaded runways--
through such ``enhancement'' procedures as the recently
announced ``Compressed Arrival Procedures'' and other ATC
changes--is incrementally reducing the safety margin so
cherished by the pilots and the passengers who have entrusted
their safety to them.
The answer to growth is new runways at a new airport--not
jamming more aircraft closer and closer together at O'Hare.
The answer to delays and congestion with existing
overscheduled levels of traffic is to reduce traffic levels
to the capacity of the runways without the need to jam
aircraft closer and closer together.
Does the current level of operations at O'Hare (and Midway)
generate levels of toxic air pollutants that expose downwind
residential communities to levels of these pollutants in
their communities at levels above USEPA cancer risk
guidelines? Though our residents have complained for years
about toxic air pollution from O'Hare, none of the state and
federal agencies would pay attention. Recently however, Park
Ridge funded a study by two nationally known expert firms in
the field of air pollution and public health to conduct a
preliminary stud of the toxic air pollution risk posed by
O'Hare. That study, Preliminary Study and Analysis of Toxic
Air Pollution Emissions From O'Hare International Airport and
the Resultant Health Risks Caused By Those Emissions in
Surrounding Residential Communities (August 2000), found that
current operations at O'Hare--based on emission data supplied
by Chicago--created levels of toxic air pollution in excess
of federal cancer risk guidelines in 98 downwind communities.
The highest levels of risk were found in those residential
communities that O'Hare uses as its ``environmental
buffer''--namely Park Ridge and Des Plaines.
Is the Park Ridge study valid? Park Ridge has challenged
Chicago, the airlines, and federal and state agencies to come
forward with any alternative findings as to the toxic air
pollution impact of O'Hare's emissions on downwind
residential communities. And that does not mean simply
listing what comes out of O'Hare. The downwind communities
are entitled to know how much toxic pollution comes out of
O'Hare, where the toxic pollution from O'Hare goes, what are
the concentrations of O'Hare toxic pollution when it reaches
downwind residential communities, and what are the health
risks posed by those O'Hare pollutants at the concentrations
in those downwind communities.
Should not something be done to control and reduce the
already unacceptable levels of toxic air pollution coming
into downwind residential communities from O'Hare's current
operations?
Should not the relative toxic pollution risks to
surrounding residential communities created by the
alternatives of a new airport, expanding O'Hare, or expanding
Midway be added to the analysis and comparison of
alternatives?
What about the monopoly problem at Fortress O'Hare and what
should be done about it? We have already alluded to the
factor of high monopoly fares as a consideration in choosing
alternatives for the new runway capacity. But the monopoly
problem of Fortress O'Hare will be relevant even if no new
airport is built. The entire design of the proposed World
Gateway Program is premised on a terminal concept that
solidifies and expands the current market dominance of United
and American at O'Hare and in the Chicago air travel market.
What can the Bush Administration do if indeed there is a
monopoly air fare problem at O'Hare or monopoly dominance is
costing Chicago area business travelers hundreds of millions
of dollars per year?
When these questions were raised in the Suburban O'Hare
Commission report, If you Build It We Won't Come: The
Collective Refusal Of The Major Airlines To Compete In The
Chicago Air Travel Market, Chicago and the airlines responded
with smoke and mirrors. First they produced glossy charts
showing that more than 70 airlines serve O'Hare. What they
neglected to show was that United and American control over
80% of those flights with the remaining 60 plus airlines
operating only a small percentage.
Similarly, the airlines and Chicago talked about the
competitive low fares charged to passengers. What they
emphasized, however, were low fares for reservations far in
advance. The major business travel organizations representing
business travel managers report that business travelers
predominantly use unrestricted coach fares since they have to
respond on short notice to business needs. An examination of
fares for unrestricted business travel from Chicago to major
business markets shows that these routes are dominated by
United and American and that they charge extremely high
``lock-step'' fares to business travelers to these business
markets.
Finally, the airlines and Chicago argued that O'Hare is
``competitive'' with fares charged to business travelers in
other Fortress Hub Markets. That statement ignores the fact
that all the major airlines are gouging captive business
travelers in all their own Fortress Hub markets. Indeed, a
repeated anecdote is the fact that a passenger from a
``spoke'' city--e.g., Springfield, Illinois--pays a lower
fare for a trip to O'Hare and then to Washington D.C. than a
Chicago based traveler who gets on the same plane to
Washington. Why? Because the Springfield traveler has the
choice of hubbing either through O'Hare or St. Louis while
the Chicago based business traveler is locked into Chicago.
Where are the antitrust enforcers to break up these
geographic cartels? Equally important, in addition to
antitrust enforcement powers, the federal government has
enormous leverage to break up the cartels through the funding
approval process of the Airport Improvement Program (AIP) and
Passenger Facility Charge (PFC) programs. Yet billions of
federal taxpayer funds go to United and American without so
much as a raised eyebrow.
What about Noise? Shouldn't we be happy to exchange some
soundproofing for new runways at O'Hare? The City of Chicago
has a residential soundproofing program which was created on
the advice of its public relations consultants to create a
spirit of ``compromise'' that would lead to acceptance of new
runways at O'Hare.
But here are some facts that are little publicized:
1. Most of our residents feel that soundproofing--while
improving their interior quality of life--essentially assumes
that we will give up living-out-of-doors or with our windows
open in nice weather.
2. Whereas many major airport cities with residential
soundproofing programs are soundproofing all homes
experiencing 65 DNL (decibels day-night 24-hr. average) or
greater, Chicago and the airlines are only committing funds
to the 70 DNL level. Result: Chicago is only soundproofing
less than 10% of the homes that Chicago itself acknowledges
to be severely impacted.
3. Chicago came into our communities asking to put in noise
monitors to collect ``real world'' data as to the levels of
noise. Yet, despite promises to share the data, Chicago
refuses to share the data with our communities.
4. Instead of an atmosphere of trust, these tactics by
Chicago have created additional animosity as neighbors on one
side of an alley or street get soundproofing while their
neighbors across that alley or street get no soundproofing.
Indeed, Chicago's residential soundproofing program--because
it is so limited in scope and ignores thousands of adversely
impacted homes--has caused even more animosity in our
communities.
In short, residential soundproofing is not the panacea that
Chicago and many in the downtown media perceive it to be.
Moreover, it does nothing to address the toxic air pollution
and other safety related concerns of our residents.
Can we have more than one ``hub'' airport operating in the
same city? Faced with the potential inevitability of a new
airport, the airlines for the last two years have been
arguing for an expansion of O'Hare (instead of a major new
airport) with the argument that a metropolitan area cannot
have more than one hub airport. Based on that premise,
United and American say that the sole hub airport in metro
Chicago should be O'Hare. That simply is not correct:
1. There are several domestic and international cities with
more than one hubbing airport. Competing airlines create
hubbing operations wherever airport space is available. Thus,
there are multiple hubbing airports in metro New York (JFK
and Newark), Washington, D.C., London, and Paris.
2. The Lake Calumet Airport proposed by Mayor Daley would
have been a second hub airport.
3. There is simply no reason--given the size of the
business and other travel origin-destination market in metro
Chicago--that a new hub competitor could not establish a
major presence at a new south suburban airport.

[[Page H5155]]

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.

[From the Chicago Tribune, March 20, 2001]

Daley and the Stench At O'Hare

Maybe after 12 years in office the mayor of Chicago thinks
he owns the chair.
And why not. Richard M. Daley's decision to let his pals
run wild, and put the best interests of citizens a distant
second makes sense.
After all those years of worrying about appearance, who
wouldn't let his buddies bend a few rules? Who wouldn't get
tired of staring cameras and pretending that every decision
is being made for the good of Chicago? And who wouldn't be
fed up with annoying questions from the newspaper gnats about
ethics?
Truth is, the growing trail of pols and pals who use their
connections with Daley to get rich--and to trash the mayor's
reputation in the process--is a marvel. So is the chutzpah
that leads the boodlers to think they won't be found out.
Unless, with their millions already stuffed in their
pockets and Daley as their see-no-evil patsy, the boodlers
just don't care any more.
The latest to be outed is Jeremiah Joyce, an old Daley
buddy who reportedly has been exploiting his connections to
line his pockets. Joyce is a player--a richly paid one at
that--in an increasingly--seamy drama: ``Why the Mayor
Doesn't Want a Third Airport.''
Unless, of course, it's a city-owned third airport, not
some paved-over cornfield outside Chicago. If Daley's cronies
had three airports to play with, they could do an even better
job of cashing out their friendships with the mayor. Sure,
they look bad, hiring on as fixers to help companies land
contracts from Daley's puppets at the city Aviation
Department. But so what? There's big money to be made. And if
Daley doesn't care about his good name, why should they?
Joyce's rental of his name and reputation reported Monday
by the Tribune's Laurie Cohen and Andrew Martin. In 1992,
McDonald's Corp. bid on a contract to handle concessions at
O'Hare Airport's new international terminal. McDonald's
didn't get the deal. But a few months later McDonald's and
Duty Free International hired Joyce. Voila!--the O'Hare
contract was up for grabs again, and the companies landed a
deal worth millions. The arrangement appears to have earned
Joyce $1.8 million last year alone.
But not to worry. Everyone denies everything. Joyce denies
using his contacts at City Hall to help the companies win
their exclusive O'Hare business just one month after they
retained him. What role did his clout play? ``I would say
none,'' Joyce says. ``I would say zero.''
David Mosena, then the city's aviation commissioner,
agrees. ``The significance of Jerry Joyce in the deal was
nil,'' Mosena says.
The Daley administration probably wants to deny the
obvious. But the mayor's people say they just can't find the
public documents that would explain how the O'Hare pact came
together. Don't you hate it when things get lost?
This fiction that nobody knew nothin' about deals at O'Hare
is familiar. Power pal Oscar D'Angelo gets at least $480,000
for lobbying on behalf of a contractor, even though he
doesn't register as a lobbyist. D'Angelo lobbies the city on
behalf of a company that uses a subcontractor run by two
women with ties to Maggie Daley, the mayor's wife. Most
recently, Victor Reyes, the mayor's former political
henchman, winds up in the middle of a billion-dollar O'Hare
construction deal just weeks after leaving Daley's payroll.
At every turn, nobody knew nothin'.

[[Page H5156]]

Mr. Mayor, spare all of us the calls for a tougher ethics
ordinance and the angry glare when you deny that you knew
about the Joyce deal. Hey, maybe you didn't know about the
Joyce deal.
What you did know, and have known for years, is that your
pals are oinking at the O'Hare through. And they can oink all
they want, because nobody wills top them. This game has only
two rules; Don't get caught. And don't say ``Peotone.''
The rest of us now see O'Hare for the economic engine it
really is. Not just for shrewd contractors and patronage
hacks, but for the select few who call the mayor of Chicago
by his first name.
____

[From the Chicago Tribune, Nov. 21, 2000]

Politics Snarl O'Hare

stalemate blocks new airport, more runways

(By Andrew Martin and Laurie Cohen)

The parochial and petty politics that have turned O'Hare
International Airport into a treasure trove for
concessionaires and contractors also are at the heart of why
the transportation hub is a quagmire of delays, hassles and
heartaches.
The political self-interests that have gotten in the way of
expanding the world's second-busiest airport--or building a
new airfield--are quietly on display on the vaulted corridors
of the United Airlines terminal.
Buy a carton of cigarettes at the duty-free shop and some
of your money finds its way into the pockets of Jeremiah
Joyce, who has been one of Mayor Richard Daley's key
political strategists.
Need a book or a magazine to pass the time? The airport's
bookseller, W.H. Smith, has paid for political advice from
mayoral pal Oscar D'Angelo, and its partners include Grace
Barry and Barbara Burrell, friends of the mayor's wife.
Satisfy a sweet tooth and you're patronizing the candy shop
partially owned by Rev. Clay Evans and Elzie Higginbottom,
both influential supporters of the mayor in the African-
American community.
Now, take a look at the passengers killing time because of
delays or sleeping on rollaway cots because of cancellations.
They're where they are because of politics too.
The hidden motives that determine everything from contracts
to projections for growth at O'Hare have created an airport
that works for the politicians, their friends and the
airport's two major airlines, but not for the public.
Political wheeling and dealing at the airports extends to
the debate over new runways and a new airport, though with
much higher stakes and a wider impact on the tens of
thousands of passengers traveling through O'Hare each day.
Daley seems determined to protect the cookie jar of jobs,
concessions, contracts and economic largesse that is O'Hare.
His administration, the Tribune has found, has manipulated
statistics to downplay the need for a new airport near the
Will County town of Peotone. At the same time, Delay has
benefitted from a friendly Clinton administration, which has
stalled the Peotone proposals.
Opposing him are a Republican governor and other
politicians trying to transform a soybean field in Peotone
into another major airport that almost certainly would
alleviate some gridlock and would placate constituents who
live on the edge of O'Hare and are weary of airport noise and
pollution.
At a time when other parts of the country are achieving
political compromises to facilitate a surging number of the
travelers with new runways and air travelers with new runways
and airports, the stalemate in Illinois is especially vexing.
U.S. Sen. John McCain (R. Ariz.) in September blamed local
political squabbling for sacrificing the interests of the
entire Chicago region and the nation.
``I say pox on all of them,'' McCain said recently in an
interview. ``Chicago is one of the most gridlocked places in
America and a critical transportation hub. We can't get
O'Hare expanded, and we can't build another airport. And
those are the only two options.''
Political dealmaking--the airport that clout built
O'Hare has been inexorably, linked with politics and the
Daleys since the day the airport--formerly a military
airfield and orchard--opened in 1955. Its transformation into
an aviation crossroads provides a lesson in Machiavellian
politics and lucrative dealmaking.
The late Mayor Richard J. Daley was instrumental in
breaking a long impasse between the city and the airlines,
which had been reluctant to move from Midway Airport, then
the nation's busiest, and cover the costs of a new airport.
Daley also resolved the sticky issue of how the City of
Chicago could control an airport outside its borders. The
solution: The city annexed 5 miles of Higgins Road, creating
a controversial ``O'Hare corridor'' that linked the city with
its new airport.
From the start, O'Hare was used by City Hall as a means to
reward political allies. Richard J. Daley's administration,
for instance, gave the right to sell flight insurance to a
company that had hired Daley's City Council floor leader,
Thomas Keane, and it handed millions of dollars in
construction work to another company that employed Keane.
Since then, as annual flights have grown to about 900,000
and City Hall has received vastly more money to spend at the
airport, the basic formula at O'Hare hasn't changed much.
O'Hare's budget for the coming year is $511 million, which
is paid for by airline landing fees, terminal rentals,
concessions charges and parking revenues--though not by
property taxes. Another $506 million is set aside for
construction projects, paid for by bond issues, federal
grants and a passenger ticket tax.
O'Hare helps Daley at election time. Airport vendors,
concessionaires and other business tied to O'Hare--and their
executives and lobbyists--donated about $360,000 to Daley's
campaign in an 18-month period beginning in July 1998. Daley
was re-elected in February 1999.
And Daley's political machine, as well his loyalists and
friends, benefits from the jobs at O'Hare. Due to the length
of Dailey's tenure, he has hired nearly 60 percent of the
1,900 employees who work for the city's Department of
Aviation, which managers O'Hare, Midway and Meigs Field,
according to a Tribune review of payroll records.
His administration has hired campaign workers and the sons,
wives, nephews and brothers of City Hall insiders. For
instance, the City employed the son of Cook County Sheriff
Michael Sheahan, also named Michael Sheahan, in 1992. A
campaign worker for Daley, the younger Shealan is now the
$65,000-a-year coordinator of security projects at O'Hare and
Midway.
The city has also brought; in the brother of Ald. Patrick
Levar (45th), who heads the City Council's Aviation
Committee. Hired in 1990, Michael Levar is now a $77,500
supervisor of construction and maintenance at O'Hare.
Dominic Longo, a longtime Democratic operative who was
convicted of vote fraud in 1984, was hired to supervise truck
drivers at the airport one year after Daley was elected in
1989. He was moved to another city department five years
later amid allegations that he had sold jobs and pressured
workers to buy tickets to campaign events for Daley and
others. Longo has denied the charges.
But the money paid for salaries is a fraction of the
dollars paid to contractors for everything from engineering
and architecture to snow removal: For example, the Aviation
Department has contracts with 29 architectural and
engineering firms totaling $356 million, $36 million worth of
contracts for snowmelting and removal, and $660,000 for
seasonal decorations.
Landrum & Brown, the city's long-time aviation planning
consultant, provides a case study in how politics and
contracts mingle at O'Hare.
The Cincinnati-based firm, which is now paid $12 million a
year and has played a crucial role in the city's efforts to
block Peotone, operated on the same no-bid city contract from
1968 to 1995, when it got another no-bid deal.
Besides donating to the mayor's campaign and charities
overseen by Daley's wife, the firm hired Oscar D'Angelo as
its political adviser shortly after Daley took office. It
also has handled subcontracts to companies owned by Daley
allies. Former campaign manager Carolyn Grisko helps with
public relations, Democratic fundraiser Niranjah Shah does
engineering work, and Chicago Housing Authority Chairwoman
Sharon Gist Gillian is a computer consultant.
United States has used a similar formula. The biggest
airline at O'Hare, United States relies on the city for long-
term, exclusive gate leases.
Besides donating hunreds of thousands of dollars to city-
sponsored events, charities favored by the Delays and
political campaigns. United has hired the mayor's younger
brother and his former chief of staff as lobbyists.
William Daley lobbied for United before he became U.S.
secretary of commerce in the Clinton administration, and Gery
Chico, now chairman of the Chicago school board, lobbies for
United States at City Hall.
A long battle--the fight for a third airport
Given the success of O'Hare--as an important hub in the
nation's air traffic system, as an economic engine and as a
source of patronage and contracts--it's not surprising that
both Daleys wanted new airports, so long as they were subject
to mayorial control.
But the push for a third airport has always bogged down in
politics, statistical sleight of hand and mixed signals from
Washington, D.C.
In the late 1960s, the elder Daley proposed building a
major jetport on land-fill in Lake Michigan, an indea that
never flew because of cost and environmental concerns.
The idea of a third airport didn't gather steam again until
the mid-1980s, when state officials were looking for sites
for a third airport to relieve O'Hare, on the orders of the
Federal Aviation Administration. The sites considered were in
rural areas south of Chicago, including Peotone.
City officials had publicly argued that O'Hare and Midway
could handle the region's aviation growth. But, privately,
consultants were urging city officials to immediately find a
Chicago site for a third airport so they wouldn't lose out to
the surburbs.
A suburban airport probably would be controlled by a
regional authority consisting of state officials, local
lawmakers and, perhaps, Daley appointees.
In 1990, Daley dropped a bombshell, announcing plans for a
$5 billion new airport at Lake Calumet on the city's
Southeast Side.

[[Page H5157]]

The mayor argued that the new airport would take pressure
off O'Hare and appease the northwest suburbs that were
opposed to O'Hare expansion. He proposed to pay for the
airport with a new $3 passenger ticket tax that Chicago
Democrats pushed through Congress.
But the Lake Calumet proposal immediately hit turbulence
because of concerns over its spiraling costs and resistance
from South Siders who didn't want Midway shuttered. The
airport plan fell apart after Republicans helped kill it in
the state Senate in summer 1992, and Daley abandoned the
idea.
By focusing attention on Lake Calumet, the city ``succeeded
again in preventing [the state] from making any meaningful
progress towards developing a new airport in a suburban
location,'' Landrum & Brown President Jeff Thomas wrote in a
memo to city officials.
``Thus the city has conducted & protracted but successful
guerrilla war against the state forces that would usurp
control of the city's airports.''
It also left Daley with a huge new pot of money, the
passenger ticket tax, which has funneled more than $600
million into the city's coffers since it was passed by
Congress in 1990. The city has spent the money on runway
resurfacing, terminal upgrades and consultants' fees, but not
on new runways or a new airport.
Lake Calumet was dead, but the battle for Peotone was just
beginning. At the end of President George Bush's tenure, in
1992, the FAA approved $2 million to start the planning
process for building an airport in Peotone.
But after President Clinton took office with some key
campaign help from the Daley family, the Peotone proposal
ground to a virtual standstill in Washington.
Under the Clinton administration, some of the mayor's
staffers assumed key positions in the U.S. Department of
Transportation and the FAA with over-sight over new airports.
For instance, Susan Kurland, former chief counsel for the
city's Department of Aviation, was an associate administrator
for airports for the FAA from 1996 to 1999.
Catherine Lang, a former assistant commissioner in the
Department of Aviation, is now director of the FAA's Office
of Airport Planning and Programming, which oversees the
passenger ticket tax and approval for new airport projects.
And Frank Kruesi, Daley's first chief of policy, was
assistant secretary in the U.S. Department of Transportation
from 1993 to 1997. He now heads the Chicago Transit
Authority.
Daley and other Illinois Democrats also played a key role
in the appointment of Clinton's first FAA administrator,
David Hinson, former head of Midway Airlines.
A few months after Hinson's appointment, the Clinton
administration pulled planning funds for the Peotone study,
citing a lack of ``regional consensus.''
Illinois Transportation Secretary Kirk Brown--who handles
the push for a Peotone airport under Gov. George Ryan, a
Republican--recalled that Hinson told him he had favored
Peotone but would ``have to consult with the mayor'' before
he proceeded with the airport plan.
Hinson, in an interview, said he didn't remember that
conversation with the mayor, though he recalled that Daley
objected to a Peotone airport.
Four years later, while Kurland oversaw the program, the
FAA quietly pulled the Peotone airport proposal off a list of
planned airport projects eligible for federal funding. The
Peotone project had been on the planning list since 1986.
Republican leaders maintain the Daley administration has
used its influence in Washington to block airport approval.
``It's the mayor through his political influence,'' said
state Senate President James ``Pate'' Philip. ``He's been
able to stop it.''
The FAA denies that politics have affected its decisions on
Peotone, and Kurland declined to comment.
Contributing to the lack of progress toward a Peotone
airfield was fierce opposition from United and American
Airlines, which dominate O'Hare and vowed not to use a third
airport.
In 1995, United spearheaded a ``Kill Peotone'' campaign
that included a letter from 16 airline executives to then-
Gov. Jim Edgar voicing their displeasure, according to
records.
American also sent a representative to Downstate chambers
of commerce to recruit allies in its opposition to Peotone.
The airline also has urged its employees who live in the
northwest suburbs to press local officials to drop out of the
Suburban O'Hare Commission, a coalition of suburbs that
staunchly oppose O'Hare expansion.
The status quo benefits the airlines because they control
85 percent of the flights at O'Hare and, without a new
airport, none of the other large carriers has an entree into
the Chicago market.
But, once again, passengers are the losers in this economic
equation. Many studies, including those by the U.S. General
Accounting Office, have shown that passengers pay
substantially more at airports dominated by one or two major
airlines.
Statistical shell game--ups and downs
The City of Chicago's political success in holding off a
Peotone airport can also be traced to a powerful tool:
questionable statistics.
For years, Chicago officials have engaged in a statistical
shell game to mask the need for a new airport and to hide
O'Hare's capacity woes.
As Jay Franke, Daley's first aviation commissioner, said in
an interview, ``Forecasts are generally made to order.''
Franke was ousted in 1992.
In the debate over airports, the key numbers are forecasts
of how many passengers are expected to fly out of an airport.
By comparing predicted demand to an airport's capacity--how
many flights an airport can handle without excessive delays--
airport officials try to determine whether a new runway or a
new airport is needed.
Forecasts by City Hall's own aviation consultants have
repeatedly indicated since 1980 that O'Hare is running out of
room. But this became a problem when Peotone emerged as the
leading option.
City officials have used a grab bag of tricks to fix the
problem. They have changed the formula for devising forecasts
and tossed aside forecasts that didn't match their arguments.
And they have insisted that O'Hare can handle more flights
because of anticipated improvements in air traffic control
that haven't yet materialized, records show.
For example, a 1993 forecast by Landrum & Brown showed that
O'Hare would be out of capacity in two years.
``If this is the case, then why build anything at all
except a new airport?'' wrote Doug Trezise, another city
consultant in a 1993 memo to Chicago aviation officials.
The solution was simple: Change the formula.
The original calculation was based on how many passengers
would use O'Hare if enough runways were built to meet the
demand. City officials asked Landrum & Brown to base the new
forecast on how many passengers would use O'Hare given its
existing capacity.
The resulting numbers were much more palatable.
The numbers game continued two years later. Landrum & Brown
came out with new forecasts that were uncomfortably close to
predictions that state officials were using to tout the need
for Peotone. But this presented a problem for the city.
``Clearly the similarities between the L&B numbers and
those developed by the [state's consultants] will make it
more difficult for the city to debate the third-airport issue
on the basis of demand forecasts,'' consultant Ramon Ricondo
wrote in a 1995 letter to a top aviation official.
The Daley administration didn't change its position. It
simply chose not to release the 1995 forecasts, the Tribune
learned from court records.
Then, in 1998, the Daley administration pulled its best
statistical stunt yet, again with the help of Landrum &
Brown.
The consultants finally delivered a forecast that the city
could not only live with but trumpet. The new figures were 25
percent lower than the previous prediction.
The forecasting change was made possible, in part, by
careful manipulation of the numbers. Landrum & Brown plugged
a population forecast into its formula that was lower than
many other population estimates.
The lower number--which called for the Chicago area's
population to grow at about half the rate of previous years--
had the effect of dampening the aviation forecast.
Where Landrum & Brown had forecast 61 million passengers
for the year 2015 in its 1995 study, it now predicted only 46
million passengers in its revised forecast. (Last year, about
36.3 million passengers boarded planes at O'Hare.)
``A realistic forecast proves a new rural airport is not
necessary for the region,'' Landrum & Brown concluded in a
summary of its findings.
Though it's too soon to say if Landrum & Brown's prediction
is off the mark, one thing is certain: The population number
it used was far too low. Already, the population in the
Chicago region has exceeded the forecast for 2007 that
Landrum & Brown used for its study, according to estimates by
the U.S. Census Bureau.
``What L&B did was just go looking for low numbers,'' said
Suhail al Chalabi, a state aviation consultant. ``Nobody has
used numbers this low before.''
Officials at Landrum & Brown declined to comment.
Despite some misgivings, the FAA accepted the city's low
forecasts for O'Hare, even though its forecasts show that the
number of passengers at O'Hare will grow twice as fast in the
next 15 years as the city predicts.
``The problem is one of political intrusion into the
technical process,'' U.S. Rep. Jesse Jackson Jr. (D-Ill.)
wrote in a Sept. 20 letter to Transportation Secretary Rodney
Slater. ``Mayor Daley has argued that there is no need for
new runways, not at O'Hare and definitely not in the south
suburbs.
``He has made sure the statistics agree,'' wrote Jackson,
who believes a Peotone airport would help his district. ``The
aviation planning process in Chicago, once a national model,
is being corrupted and is truly a technical disgrace.''
Changing positions--running from runways
The latest position out of City Hall is that it won't stand
in the way of Peotone--``They can go build it,'' the mayor
now says--and that new runways at O'Hare are unnecessary.
The Daley administration now says it can meet demand at
O'Hare through a $3.2 billion building program called World
Gateway that is under review by the FAA. It calls for new
terminals, parking spaces and expanded light-rail service.
It does not call for new runways, and city officials
contend O'Hare has sufficient capacity through 2012.
Officials, however, decline

[[Page H5158]]

to say exactly how many planes the airport can handle, and
some experts think O'Hare is out of room now.
``On the whole, the system works awfully well,'' Aviation
Commissioner Thomas Walker said in a recent interview. ``We
will have to get used to the occasional inconveniences.''
Though it might be logical for the city to lobby heavily
for additional runways at O'Hare, it would be bad politics.
If Daley were to argue for a new runway, his Republican
foes likely would pounce on that as evidence that a new
airport in Peotone is needed.
Also, the Republicans hold all the cards when it comes to
O'Hare expansion. Final approval for new runways rests with
the governor's office, and a Republican has been governor
since 1977.
To make room for the runway, Daley would have to use the
city's condemnation powers to take a significant chunk of
Bensenville, a leader in the efforts to block an expansion of
O'Hare. Among the properties the city would bulldoze are the
Garden Horseshoe neighborhood--home of more than 2,000
people--as well as 28 businesses, a cemetery near St. John's
Catholic Church and a water tower.
While Daley remains noncommittal on runways, his longtime
supporters in the business community now say they are crucial
to the future of O'Hare and the local economy. United
Airlines and the Civic Committee of the Commercial Club of
Chicago, an influential business group, say there is an
immediate need for a new runway at O'Hare.
The Republican opposition to new O'Hare runways has been
staunch. With political power bases in the airport's shadows,
Philip, U.S. Rep. Henry Hyde (R-Ill.) and state Atty. Gen.
Jim Ryan have fought on behalf of constituents who don't want
jet noise to increase in their communities.
A suburban airport, which is supported by Gov. George Ryan
and other key Republicans, also would give Republicans access
to the aviation jobs and contracts that Daley now solely
controls.
While Chicago remains mired in political gridlock, mayors
and other governmental officials across the nation have
risked the political capital to increase capacity at their
airports.
Since 1995, relatively little airport expansion took place
nationally--a total of four new runways, five runways
extensions and one runway reconstruction at nine of the 27
hub airports.
However, over the next eight years, the pace of
construction will triple. Seventeen of the hubs are building
or have plans for 17 new runways, 12 extensions and one
reconstruction, all to be completed by 2008.
One important reason for the shift in to high gear is that
the opposition of neighboring municipalities to airport
expansion is now being blunted or overridden. For decades,
complaints about noise and pollution have kept airport
expansion projects in check.
But increasingly, court officials and legislators are
deciding those concerns are outweighed by the importance of
the air traffic system to the U.S. economy and the needs of
millions of air travelers.
``Virtually every other major airport in the country has
added or is adding ground capacity,'' said R. Eden Martin,
president of the Civic Committee of the Commercial Club of
Chicago, whose members include the major airlines and which
has opposed a major airport in Peotone.
``Why don't we do in Chicago what an enlightened airline
industry, business community and political leadership was
able to do in Atlanta?'' Martin said.
In Atlanta, city, regional and state leaders came together
in support of a new runway at Hartsfield International
Airport, which is now outdistancing O'Hare as the world's
busiest airport. Yet, in winning expansion, Hartsfield had
one huge advantage over O'Hare: Partisan politics was never
an issue because nearly all major political players in
Atlanta and Georgia are Democrats.
Even so, negotiations took nearly a decade, and it wasn't
until late last year that a key compromise was reached with
College Park, a municipality that borders the airport and
will be truncated by the new runway. The town got money to
move a convention center and develop hotels, office buildings
and car rental facilities. In return, it will lose 100
businesses and the homes of 2,500 people to demolition.
That's the same sort of price that Bridgeton, a middle-
class suburb of St. Louis, is going to pay because of plans
to expand Lambert-St. Louis International Airport.
Unlike College Park, Bridgeton has been in court, fighting
the plans that would level six schools, at least two parks,
six churches, 75 businesses and nearly 2,000 homes. But, in
April, the Missouri Court of Appeals overruled the
municipality's objections to the expansion, concluding, ``The
substantial benefits conferred by the operation of the
airport on the public clearly outweigh the interest of
Bridgeton. The expansion of Lambert Airport is essential to
its survival.''
Among the 27 hub airports in the U.S., O'Hare is the only
one that hasn't built a new runway and has no plans to do so.
Former Gov. Edgar, a Republican who participated in the
airport feud during his eight years in office, now says the
time has come to forget politics and address a critical issue
for the region.
``There's a good case for a new runway at O'Hare,'' Edgar
said. ``There's a good case for a new airport in the south
suburbs. The longer we wait, the more acute the problem is
going to be.''
____

The Third Chicago Airport Fact Sheet

The Federal Aviation Administration has called for a major
expansion of U.S. airports to meet increased demands on
aviation. In 2020, Chicago's regional demand will be two and
a half times that of 1993, double that of 1999. By 2001, over
7.1 million projected enplanements in the Chicago region will
not be accommodated unless the South Suburban Airport is
built.
Five independent studies on the need for an additional
airport in the Chicago region concluded a third airport
should be built. The studies concluded the third airport will
have no negative impact on either Midway or O'Hare Airports.
Instead, it would bring over $9 billion, annually, to our
region, above and beyond that of the existing airports by
2010; over $16 billion by 2020.
The initial study, the Chicago Airport Capacity Study,
concluded that neither Midway nor O'Hare Airports could be
expanded to meet Chicago's long-term air transportation
needs. With the release of the state's 1994 and 1995 demand
forecast studies, it became clear that Midway and O'Hare
Airports would be at or near capacity by the year 2000. By
1999, we have watched capacity constraints cause major delays
at O'Hare; and, by ripple effect, throughout the nation.
Building a new airport ensures that Chicago remains the
nation's prime aviation hub into the next century. It also
creates a wide array of airport-related jobs and contributes
major revenues to state and local governments. A third
airport means 236,000 new jobs and $5.1 billion in annual
wages, by 2020.
IDOT studies state that capacity constraints at O'Hare
will, first, cause airlines to eliminate commuter air service
and, then, all aviation services to cities within 150 miles
of Chicago. This trend began in 1992, with airlines
increasing fares to downstate communities, resulting in less
passenger traffic. The airlines then cut commuter service
and, eventually, may eliminate all service to downstate
communities; many already have lost service. Eventually, the
ability of the Chicago region to attract and retain
businesses, jobs and residences would be affected. In 1998
and 1999 some of these lost services were restored, due to
adverse publicity, intensive lobbying by officials, and
pending Federal legislation.
In 1996, IDOT stated that, in order for the Chicago region
to continue as a major transportation and commercial center
in the 21st century, the South Suburban Airport should be
ready by 2001. However, political maneuvers have kept the
project in limbo. But capacity constraints and their impacts
continue to multiply. O'Hare already operates, for safety
reasons, under FAA restrictions on the number of flights; but
Congress is planning to lift these caps. Midway cannot be
expanded to include more or longer runways, barring the
displacement of surrounding homes and businesses. Although it
will not increase capacity, more than $2 billion will be
spent on landside improvements at these airports.
Over the next 20 years, employment in the 14-county region
is expected to grow by almost two million jobs. With the new
airport, jobs from Chicago's three airports will grow to
674,000, almost 10 percent of the region's total employment
in 2020. Without the new airport, projected job growth in the
14-county region will be reduced by 535,000. In the six-
county region, the reduction would be 415,000 jobs. The
economies of many cities within 150 miles of Chicago will be
adversely affected as their traditional businesses, financial
and personal ties are cut or strained and transferred to
competing regional hubs.
The location selected for the third airport is 23,845 acres
of land 15 miles south of the Chicago city limits. The new
airport will result in a better distribution of jobs to the
existing population; improved accessibility to jobs for
minority populations: and a more-balanced regional growth.
The site is the closest feasible to the Chicago urban area
and has no significant environmental concerns.
The proposed Third Airport would bring jobs and development
to a mature portion of the region, hard hit by industrial
automation. It makes use of an in-place transportation
infrastructure and provides access to nearby inexpensive land
for development. It will allow residents of the South Side to
reduce both travel time and costs to their jobs. It will
bring revenues to municipalities with the highest tax
assessments in the region. It is smart growth.
____

[From Crain's Chicago Business, Jan. 29 2001]

High Cost of Gridlock

stalemate over airport expansion is starting to inflict damage

(By Greg Hinz)

Gov. George Ryan had barely dispatched his bagel and eggs
when members of the Illinois Business Roundtable gave him
cause for indigestion.
Chicago's economic crown jewel, its once world-leading
aviation system, is in trouble, the audience of leading
corporate executives bluntly told the governor at the private
breakfast meeting late last fall. O'Hare International
Airport is not being taken care of, the executives asserted.
In fact, O'Hare now is so beset by delays, congestion and
cancellations that financial services giant Household
International Inc.

[[Page H5159]]

is locating new jobs out of state, Chairman and CEO William
Aidinger informed Mr. Ryan. When Prospect Heights-based
Household has been expanding, he said, it's been expanding
someplace else.
That message is every bit as ominous as it sounds for the
Chicago-area economy. A decade of scorched-earth political
warfare over O'Hare is beginning to take a toll, threatening
the city's status as the nation's transportation center and
its draw as a corporate headquarters and services center.
Now, the engine that has generated an estimated 500,000
jobs and $35 billion a year is at risk of losing momentum.
And continued constraints at O'Hare could cost the region up
to $10 billion a year in lost economic activity--from
business meetings to larger-scale corporate investment--
according to one recent study.
Clearly, business, jobs and investment aren't coming to
Chicago--at least not to the extent they might be, had
government leaders resolved the fight over whether to add
runways at O'Hare or build a new airport in Peotone. In the
end, they may have to do both. In the meantime, cities such
as Denver are nabbing marketshare.
``Could Chicago lose critical mass as a business services
center? It's a strong possibility,'' says William Testa,
senior economist and vice-president of the Federal Reserve
Bank of Chicago. ``Everything that's growing (in the Chicago
economy) is dependent on that engine called O'Hare Airport.''
Already in a hole
The situation is so troublesome that former Gov. Jim Edgar
for the first time is revealing that he tried to cut an
airport expansion deal just before he left office two years
ago. Pressure is rising fast on Mr. Ryan and Mayor Richard M.
Daley to finish the job.
Most of the evidence of damage is so far circumstantial.
Few business people will talk about why they chose to locate
a new facility elsewhere. But as former Chicago Aviation
Commissioner Jay Franke puts it, ``By the time you know for
sure you've been hurt in this business, it's too late. It
will take 15 years to dig out the hole.''
How deep is the hole? Though some data are debatable, a
general trend is clear:
The city is losing marketshare in the nationwide aviation
business, with O'Hare passenger volume growing at just two-
thirds the national rate in the past four years and domestic
enplanements--the number of people boarding planes--down two
years in a row.
``The picture at O'Hare continues to deteriorate,'' says
Robert Baker, vice-chairman of American Airlines, which is
buying Trans World Airlines and intends to expand TWA's St.
Louis hub. ``Unless O'Hare is operated better than it has
been and is allowed to grow with the rest of the economy, its
competitiveness will decline.''
O'Hare's connecting, or hub business, is moving elsewhere,
dropping from 60 percent of domestic enplanements in 1993 to
a projected 52 percent by early in the next decade, according
to the Department of Aviation.
The loss of hub traffic means that O'Hare stands to lose
the large number of destinations and flights that make
Chicago such a draw for corporate meetings, trade shows and
even business expansion. That loss could jeopardize O'Hare's
far more lucrative long-haul domestic and international
business, which draws on passengers from feeder cities.
``The challenges Chicago is facing give us an opportunity
to pick up some of their traffic,'' says Amy Bourgeron,
deputy manager of aviation at Denver International Airport, a
key and fast--growing hub for Elk Grove Township-based United
Airlines. ``We have the ability to grow.
Decisionmakers say that O'Hare's reputation as a good place
from which to do business is down--way down--with congestion
costing Chicago businesses an estimated $3 billion last year
in lost time and expenses, according to an analysis by
Deloitte & Touche LLP (Crain's, July 31).
Terrible reputation
``In the marketplace, the perception is that Chicago is a
horrible place to go through,'' says Stephen Stoner, a
facilities location expert who heads the U.S. real estate
consulting practice for Arthur Andersen LLP. ``If I were the
mayor, I'd be nervous. ``
Confirmation that a problem exists comes from a surprising
source--Mr. Edcrar, a Republican known for his supposed anti-
Chicago attitude and support for a third airport at Peotone.
The former governor says he quietly attempted to negotiate
a pact with Mr. Daley at the end of his term in 1998 in which
he would have agreed to a new runway at O'Hare, in exchange
for the mayor signing off on construction of a Peotone
airport using state and federal funds.
Mr. Daley says such a conversation never occurred. But Mr.
Edgar says he made the previously unreported offer because he
concluded that airport gridlock is costing Illinois. ``If we
don't do something now, we're going to be in trouble in years
to come,'' he says. (See story, this issue.)
National political leaders, too, are getting involved. ``We
either expand O'Hare Airport, or we build another airport, or
both,'' Sen. John McCain, R-Ariz., declared during a Senate
Commerce Committee hearing last summer.
Capacity issue is critical
The shortage of runway space--``capacity constraints'' is
the industry label--obviously isn't the only cause of
O'Hare's woes. Labor strife and technological snafus, bad
weather and federal limits on the number of flights all have
contributed to the airport's declining stature.
But at the center of the problem is the need for one or
more runways, which would offset or ease the other
constraints as O'Hare gears up for possible expansion with
the scheduled lifting of flight slot controls in 2002.
``The region needs new runway capacity,'' argues Chicago
attorney Joseph Karaganis, who has made a career fighting
O'Hare but does not dispute the notion that something must be
done. ``The question is where to put them.''
Two major studies in recent years concluded that the local
economy would take a big hit if the airport capacity problem
were not solved. The first was a 1996 Dallas/Fort Worth
review by the Regional Economics Applications Laboratory
(REAL), a joint venture between the University of Illinois
and the Federal Reserve Bank of Chicago.
REAL concluded that allowing airport capacity here to grow
as much as the market demands would create up to 55,000 jobs
in aviation-related fields alone by 2018, and add $15.7
billion in direct value to the metropolitan-area economy.
Geoffrey Hewings, one of the chief authors of that study,
says he has not since attempted to measure whether capacity
constraints indeed have begun to exact a toll, but believes
they're ``starting to. We were suggesting, that, by 2001 or
2002, we'd begin to see a 1 percent or 2 percent loss (of
potential growth).''
Two subsequent studies by the Chicago office of Booz Allen
& Hamilton, a consulting firm commissioned by the Civic
Committee of the Commercial Club of Chicago, reached similar
conclusions. Even if some version of Peotone is built,
``artificially constraining O'Hare at the current levels of
900,000 (flights a year) could cost $10 billion annually'' in
direct spending on passenger services and indirect
benefits from economic activity such as corporate
meetings, the study concluded.
Incentives disappearing
Booz Allen derived that number by making a key but logical
assumption: When capacity is limited, airlines will focus on
the most profitable side of their business here and ignore
less lucrative traffic.
As Booz Allen saw it, high-margin international passengers
are the most valued, worth $2,310 each to the regional
economy. Next in line are Chicago-area residents flying to or
from other North American cities--known as origin and
destination (O&D) passengers--worth $1,200 each. Last in the
priority queue: those flying here from smaller Midwestern
cities, and connecting passengers who can be dispatched to
other hubs, such as Atlanta, Dallas and Denver; they're worth
$430 each.
Over time, connecting traffic and flights to smaller cities
will tend to be displaced, Booz Allen concluded. If enough of
those go, there eventually will be ``less incentive for
airlines to focus international growth investments on
Chicago.''
The reason: Why should, say, Iberia Airlines run service to
Chicago rather than Detroit if Detroit has more flights to
smaller American cities where Iberia's passengers live?
Right now, international traffic is perking along nicely at
O'Hare, rising nearly 50 percent in just the past four years.
But the process of dumping short flights in favor of long
flights, and connecting traffic in favor of O&D business, has
begun, according to Suhail and Margery at Chatabi, principals
in Chicago-based at Chalabi Group, the state consultant on
the proposed Peotone airport.
While Chicago once was an aviation leader known for above-
average growth, O'Hare operations have been flat in recent
years, and domestic enplanements actually are down, Ms. al
Chalabi notes. ``The airlines are putting more of their
(connecting) schedule in other hubs.''
Consistent with that loss of hub traffic, Mr. al Chalabi
points to figures he's derived from federal reports that
suggest O'Hare is indeed losing marketshare. O'Hare
enplanements were up just under 9.0 percent between 1995 and
1999, those data indicate--compared with an average 13.5
percent increase for the nation's 68 largest airports, and
well below increases at rival hub airports such as Dallas/
Fort Worth (17.2 percent), Denver International (15.3
percent) and Atlanta Hartsfield (29.7 percent).
If booming Midway Airport is included, the metro-Chicago
hike is slightly more than 13 percent, near the 9 national
average, Mr. al Chalabi concedes- But Midway soon will hit
capacity and be unable to capture O'Hare overflow, he argues,
and the O'Hare increase largely is driven by international,
not domestic, business.
Aviation Department reports indicate that O'Hare's domestic
business almost certainly fell for the second year in a row
in 2000, down 1.2 million passengers, or nearly 2 percent,
and that the number of O&D enplanements is at its lowest
level since 1995. Remarkably, that flat-to-down performance
came during, a period of unparalleled prosperity, when air
travel nationally was rising 2 percent to 3 percent a year.
Runways not the key, city says
But City Aviation Commissioner Thomas Walker reads the
figures differently. Chicago's aviation market is ``mature,''
he insists, and O'Hare won't need any O'Hare is losing new
runways until at least 2012.
O'Hare has been held back not by a runway shortage but by
federal slot rules, argues Mr.

[[Page H5160]]

Walker, whose boss, Mayor Daley, has made it clear the city
does not want to discuss runways now. In fact, Mr. Walker
says, ``the runway capacity we have isn't matched'' by the
number of available gates, taxiways and other ground
facilities needed to handle the planes that do land.
O'Hare plans to remedy that situation with its $3-billion
World Gateway plan, which will add two terminals and up to 32
gates, Mr. Walker says. Even so, O'Hare will grow more slowly
than other U.S. airports, he concludes. ``There just aren't
that many more destinations to serve, or that many which are
underserved.''
Ramon Ricondo, a consultant who works for O'Hare and other
airports around the country, says it's ``too soon'' to worry
about recent weakness in O'Hare's domestic business. ``You
could have any number of things going on,'' he says, with one
major carrier or another temporarily moving traffic to suit
its particular needs.
``If O'Hare was less desirable,'' Mr. Ricondo concludes,
``you wouldn't see United and American fighting so hard to
get more oates here.''
But other data released by Mr. Walker's department indicate
that O'Hare's hub business has been down over an extended
period, dropping from 60 percent of the airport's domestic
enplanements in 1989 to 55.5 percent in 1995. The figure has
recovered a bit in the intervening years, but the city
projects it will fall to 51.8 percent by 2012.
Additionally, while O'Hare continues to attract non-stop
service to new destinations, many of them overseas, it is
losing flights to smaller Midwestern cities.
Between December 1996 and December 2000, O'Hare added non-
stop service to 32 new locations--including Hong Kong;
Istanbul, Turkey; Osaka, Japan, and Krakow, Poland--according
to Official Airline Guides, an Oak Brook-based division of
Britain's Reed Elsevier plc Group. During the same period,
the airport lost non-stop service to 15 cities, including
Decatur, Danville and Sterling, Ill. Terre Haute, Ind., and
Mason City and Sioux City, Iowa.
Future performance a concern
Industry experts say there is reason for Chicago to be
concerned.
American Airlines' Mr. Baker says he worries that O'Hare's
performance will further deteriorate when carriers try to add
more flights after the slot cap is lifted in 2002. He points
to the chaos that enveloped New York's LaGuardia Airport last
summer when slot controls were lifted temporarily there.
``There's no way to add Chicago capacity without dragging
(performance) down,'' says Mr. Baker, who was interviewed
before American announced plans to buy TWA. ``That would
affect Chicago's viability.''
Thomas Hansson, one of two chief authors of the Booz Allen
report, concurs that O'Hare operations are ``at capacity.''
Walter Aue, American's vice-president for capacity
planning, confirms that his airline's expansion here will be
``focused internationally,'' even though it also would like
to add service from Chicago to the East Coast.
Other carriers' decisions in recent years to open hubs in
cities such as Cincinnati and Detroit are a sign of what's
occurring, he adds. ``They're a reflection that O'Hare hasn't
grown in 20 years. O'Hare should be growing at a greater rate
than it is,''
Howard Putnam, a former United vice-president who later
headed Southwest Airlines and the now-defunct Braniff
Airways, says he hears one statement a lot from top airline
pros: ``We don't have enough concrete'' in Chicago.
Mr. Putnam says he hasn't examined the latest data on
whether O'Hare is losing marketshare, and notes that the data
likely can be interpreted in various ways, but he's
nonetheless made up his mind about O'Hare: ``I haven't been
there in three years. I go anywhere else I can to avoid it.''
Even Chicago's hometown airline, United, is avoiding
Chicago to some degree. Though its headquarters is on the
north edge of the airport, the carrier confirms that other
hubs like Denver are getting business that O'Hare can't
handle. (See story, this issue.)
Things are so tight here that a labor action or bad weather
has a ripple effect--for example, the stranding of thousands
of United passengers last summer.
As serious as O'Hare's problems are, the more basic
question for Chicago is whether the airport wars have begun
to claim victims throughout the broader economy.
Some say not yet, but they're worried.
``There is such a solid base of business here that they see
themselves surviving in spite of O'Hare,'' says Laurie Stone,
president of the Greater O'Hare Assn. of Industry and
Commerce, a 1,200-member business group. ``I don't see very
much political leadership.''
Marginalizing O'Hare
Others--particularly in growing, transit-dependent fields
such as law, accounting and banking--have begun to adjust
their work habits, or fear they will have to soon.
Diane Swonk, chief economist at Chicago's Bank One Corp.,
crew so fed up with O'Hare that she began flying, out of much
smaller, but more dependable, Midway. Once there, she
discovered that a lot of other bankers already had made the
move.
Michael Krauss, chief marketing officer at DiamondCluster
International Inc., says employees at his Chicago-based high-
tech consulting firm survived last summer's flying, woes by,
among other things, making more conference calls.
But some companies already have decided to sidestep O'Hare.
Michael Lynch, director of public affairs at Illinois Tool
Works Inc., says flying personnel to Detroit for a weekly
meeting with big, auto clients became such a hassle that the
Glenview-based manufacturer has cut way back on trips.
Instead, the firm taps the teleconferencing network it
recently built at 20 locations worldwide.
In fact, the company is so fed up with O'Hare that it
almost located a new manufacturing facility near St. Louis,
deciding on Ottawa, in LaSalle County, at the last minute
only because of other factors, Mr. Lynch says. ``O'Hare is
being, marginalized.
No. I priority
That view is being expressed more and more.
Lester Crown, the industrialist and financier who heads the
Civic Committee's aviation panel, says that when he speaks
with his colleagues from other cities, they say two things
about Chicago It's ``a wonderful place to be,'' and ``O'Hare
is a mess. What a shame.''
For those who want to keep the region prosperous, he adds,
``nothing, could be of more benefit'' than ending Chicago's
air gridlock. ``Anything else pales in comparison.''

Is Political Breakthrough on the Radar?

Amid the harsh words and political flak that dominate
Chicago's airport wars, a surprise is emerging: the outline
of a potential compromise.
At first glance, airport peace seems as likely as a Cubs
World Series sweep. After all, O'Hare's politically powerful
neighbors, led by the Suburban O'Hare Commission, not only
want to cap growth but also complain bitterly about noise and
air pollution. And Mayor Richard M. Daley, by all accounts,
is unwilling to even acknowledge that an airport capacity
problem exists, much less sit down and bargain.
But after a decade of dogfights over O'Hare and Peotone,
there are signs the region may be at a critical turning
point. With a new president, a governor perhaps in search of
a legacy and a business establishment that's increasingly
vocal about O'Hare's importance to its growth, the logjam
could break.
The wild card is Mr. Daley and whether he's willing to push
when pushing might work. Asked repeatedly in various forums
about the airport problem, Mr. Daley dismisses discussions
about the need for additional runway space. As for Peotone,
the mayor usually responds, ``If they want to build it, they
should go buy the land.''
There are reasonable compromises out there,'' says U.S.
Rep. William O. Lipinski, D-Chicago, who holds a crucial
bargaining post as the ranking Democrat on the House Aviation
Subcommittee. ``Whether there are people out there who are
reasonable, I don't know.''
Another top Democrat may be jumping into the fray. Illinois
House Speaker Michael Madigan is considering forming a
committee on aviation, aides to the Chicago Democrat confirm.
The panel would give Mr. Madigan a platform to raise his
profile on the subject of runway and airport expansion.
One sign auguring in favor of the obvious compromise--a
runway or two plus new western ground access at O'Hare, and a
small airport at Peotone--is that the public positions of
some of the major players are closer than is generally
realized.
For instance, while Suburban O'Hare Commission lawyer
Joseph Karaganis argues that Peotone will be a financial flop
unless limits are imposed on O'Hare operations, state
Transportation Secretary Kirk Brown, Peotone's original
patron, disagrees.
He says Peotone ``absolutely'' needs neither caps at O'Hare
nor a portion of O'Hare-generated passenger fees: ``You don't
need to take traffic from O'Hare.'' Mr. Brown wants the state
to build a $500-million starter field at Peotone using state
and federal funds.
The goal is to build an airport with point-to-point
flights, not a hub, that would start out slowly and build,
like Midway,'' he says.
Such a position should please executives such as Robert
Baker, vice-chairman of American Airlines. He says American
does not want to be forced to pay for dual hubs at O'Hare and
Peotone, since the vast majority of its passengers live
closer to O'Hare, but concedes that ``some small amount of
local service might work'' at Peotone.
The Midway factor
Another example: City gripes that building Peotone could
kill Midway Airport appear to be overblown, at least legally.
It is true that leases signed by Southwest Airlines and
other Midway carriers allow them to leave under certain
conditions. But those conditions are limited to cases in
which the city itself develops another airport within 50
miles, or in which someone else does and thereby forces
``material limitations on operations'' at Midway, according
to the city's lease with Southwest.
One well-placed city official concedes that the language is
``intentionally vague.'' And Southwest's director of
property, Peter Hampton, acknowledges that mere competition
from Peotone would not be enough to cancel the lease, but
argues that the meaning of ``material limitations'' might
have to be resolved in court.
Driving a possible compromise: political change. The
relationship between Mr. Daley and Gov. George Ryan is as
congenial as the relationship between Mr. Daley and former
Gov. Jim Edgar was icy--and both officials

[[Page H5161]]

are under increasing pressure to work things out now, while
they still can.
Though the mayor flatly denies that he met with Mr. Edgar
to discuss airport issues in 1998, Arnold Weber, who was
president of the Civic Committee of the Commercial Club of
Chicago, says the big-business lobbying group helped arrange
the meeting and that Mr. Edgar briefed him on its outcome two
or three days later.
I never ever had a conversation with him on that subject,''
Mr. Daley says. Asked if he could work with Mr. Ryan on a
compromise, he says, ``I don't know. This is the governor's
standoff.''
Why the mayoral reticence?
Some say Mr. Daley never got over his bad airport
experience of several years ago, when the proposed Lake
Calumet field was quickly shot down, and is unwilling to
expend more political capital. Other political insiders say
Mr. Daley's mind is on a more practical matter: tens of
millions of dollars in jobs and contracts that friends and
associates control at O'Hare.
But the mayor may not be able to duck much longer. With
Republicans, rather than the anti-Peotone Clinton White
House, now running the U.S. Department of Transportation, Mr.
Daley runs the risk of the GOP winning crucial federal
approval to build Peotone without giving O'Hare anything.
The pressure on Mr. Ryan is even more acute. A dealmaker
par excellence, Mr. Ryan could cut the mother of all deals on
Chicago airports, State law gives him the power to
unilaterally approve more runways at O'Hare. But with federal
prosecutors having badly damaged his reputation, Mr. Ryan's
time in office may be running short.
Hastert could weigh in
There is one other key figure: U.S. House Speaker J. Dennis
Hastert, R-Yorkville.
Unlike powerful DuPage County politicians such as Illinois
Senate President James ``Pate'' Philip and U.S. Rep. Henry
Hyde, R-Addison, he tends to favor O'Hare expansion because
his district is far enough from the airport to be insulated
from noise problems but close enough to share its economic
benefits. If the city, as part of a runway deal, agrees to
add a western entrance to O'Hare--just minutes away from Mr.
Hastert's district--the speaker might bite, insiders say.
Bottom line: ``A deal is possible. There's probably as good
a chance now as ever,'' says one top Springfield insider.
``At some point, I think the governor will be willing to
talk.'' But will Mr. Daley talk, too?

Denver's Skies Friendlier as united Expands

With 450 departures a day from O'Hare International Airport
and its corporate headquarters just a few blocks away from
the terminals, United Airlines might be said to have a major
investment in Chicago's aviation system. But when it comes to
growing its mid-continent hubs, United's rising star is
located a thousand miles away from its hometown, in Denver.
United has added dozens of flights at Denver International
Airport since 1995, while its O'Hare operations and passenger
flow have barely edged up.
``Our ability to grow (O'Hare) has been limited,'' says
Kevin Knight, United's vice-president in charge of route
development, blaming a shortage of gates that will be only
partially alleviated by O'Hare's pending expansion, about-to-
expire federal slot rules and a shortage of runways that
shows no sign of easing.
``One of the major challenges we face is getting airplanes
out of the airport,'' he say. ``That means runways.''
The carrier's pending acquisition of US Airways Group Inc.,
with its coveted East Coast routes that will provide a
lucrative feed for long-haul domestic and international
flights, will enable United to grow faster than before. But
with O'Hare's current constraints, it's possible that Chicago
won't reap the benefits of a larger, more powerful United.
The numbers tell a simple story.
At the 6-year-old Denver International, where United and
its United Express feeder line are dominant, operations have
been rising about 4 percent a year for the past five years--
about the same as in other airlines' mid-America hubs, such
as Detroit, according to Mr. Knight. Much of that service is
provided by increasingly popular regional jets, which carry
fewer passengers but require almost as much runway space as
large aircraft.
But at O'Hare, United's operations and enplanements--the
number of passengers boarding planes--are up just 1 percent,
Mr. Knight says.
Since United still wants to grow its high-margin
international business in Chicago and to serve as many local
residents as possible an their domestic trips, something has
had to give. The something is connecting hub service, in
which out-of-towners fly here to get a flight to a third
city. That service has begun to head elsewhere.
``The percentage of our passengers that are local in
Chicago has been increasing,'' Mr. Knight says, jumping from
38 percent in 1994 to 44 percent in 1999. That means
connecting passengers are down, to 56 percent from 62
percent.
``While we continue to serve the local Chicago market very
effectively, we are increasing local service at the expense
of connections,'' Mr. Knight concedes. ``Some of that traffic
that could go to Chicago is going elsewhere.''
Mr. Knight doesn't identify any particular flight or city
that's vanished from United's service roster. He insists that
United's recent decision to drop non-stop service from
Chicago to Honolulu--O'Hare passengers now have to change
planes in Los Angeles or San Francisco en route to Waikiki,
just like the folks from Des Moines--was based on other
factors.
But there are big smiles in Denver, where the total number
of passengers leapt 21 percent to an estimated 39.2 million
last year from 32.3 million in 1996, far surpassing Chicago's
modest 5 percent increase to an estimated 72.4 million in the
same period.
United already has added 50 flights a day in Denver since
the city's old Stapleton Airport closed in early 1995, and
United Express service is up 25% in three years. The airline
has agreed to lease 10 more gates in Denver--more than the
eight additional spots it will get under O'Hare's pending
World Gateway expansion--and announced last June that it's
building a $100-million, 36-gate regional concourse there.
``They are growing here. We like that,'' says Amy
Bourgeron, Denver's deputy manager of aviation. ``We have
competitive advantages over other airports that have
congestion and traffic problems.''
Mr. Knight does have a little good news for O'Hare. For at
least the next five years, it will remain United's single
largest hub.
Meanwhile, he has a sharp reply to contentions by city
officials that Chicago is a ``mature'' market in need of
little new service: ``I couldn't agree with that. This is a
viable, growing market.''
____

[From the Chicago Sun-Times, Feb. 17, 2001]

Mayor Stands Exposed on Airport

(By Jesse L. Jackson, Jr.)

Mayor Daley's erratic posturing on a third airport in
Chicago reminds me of the fabled emperor with no clothes.
No matter what the emperor said, believable or not, his
followers displayed blind loyalty.
In the late 1980s, Daley mocked the idea of a third
airport, calling it unnecessary. In 1990, he did an about-
face and proclaimed that Chicago needed another airport or
else the city would ``continue to lose business to Denver,
Dallas, Atlanta and others.'' Two years later, in another
reversal, Daley declared that Chicago had enough airport
capacity for another 20 years.
So, throughout the '90s, the city paid hundreds of millions
of dollars to consultants, lobbyists and public relations
firms to force-feed incorrect data to the public and the
federal government, supporting the mayor's bogus claim that
the city needed no new capacity. All the while, O'Hare was
choking on congestion, delays and gridlock.
As recently as last month, the mayor and the city Aviation
Department reiterated that O'Hare needed no new runways until
2012.
Then on Feb. 1, the mayor flipped again, dropping all
pretense and admitting the obvious--that Chicago needed
additional capacity. Now the mayor is calling for new runways
at O'Hare.
Unfortunately for taxpayers, the mayor's deception has come
with a heavy price tag.
To pay for his ill-fated third airport, Daley in 1992
leveraged Congress to enact a $3 ticket tax on air travelers.
The so-called passenger facility charge was, according to
Congress, to be used to increase airport capacity and enhance
airline competition.
Instead, the city committed $3 billion in passenger
facility charge receipts--all those to be collected through
2017--to expand and gold-plate terminals, improve taxiways
and aprons, and pay consultants--none of which adds capacity
or competition to the overcrowded, overpriced O'Hare.
Consequently, passengers are paying for a new airport but
getting increased fares, delays, cancellations and congestion
at ``O'Nightmare.''
Now, given the mayor's renewed call for runways, it is
inevitable that City Hall and O'Hare's dominant carriers,
United and American airlines, will return hat-in-hand to ask
the federal government and the public to pony up more money.
After violating the public trust so often, the mayor wants
to be the steward of it. But his tactics have led to
misplaced priorities and misallocation of funds. Chicago
deserves better.
Fortunately, there is an alternative. The State of Illinois
has proposed building a third airport near Peotone. As
proposed, the inaugural airport could be built faster,
cheaper, cleaner and safer than a new runway at O'Hare.
With Peotone's stock suddenly rising with the new
administration in Washington, Daley and his supporters in
business and the media are promoting a compromise. Many are
advocating that O'Hare get a new runway in exchange for
Peotone getting off the ground. Of course, a new runway at
O'Hare makes Peotone unnecessary for at least several more
years.
I oppose such a deal. The city has strained its credibility
and blocked the doorway of opportunity long enough. The
region is paying with lost jobs, market share and tourism.
Passengers are paying with high fares and poor service.
For the sake of safety and fairness, Peotone must be the
taxpayers' new first priority. Because the naked truth is,
the city, the mayor and the airlines no longer can be blindly
trusted to ensure that Illinois gets the best deal.

[[Page H5162]]

____
A Message from the Mayor

(By Richard M. Daly)

Chicago's Southeast Side, along with the entire Calumet
region, has been in a state of economic decline since the
steel industry and its related businesses left the area.
The loss of this industrial base proved devastating to many
thousands of families forced to endure years of harder times.
Over the years that followed, there were many promises of
revitalization and major new industry. None of them amounted
to anything.
There are two realistic futures for this area.
One is to continue struggling, fighting for dwindling
resources that will never be enough to restore the area to
economic and environmental health.
A comprehensive clean-up of the industrial pollution alone
would cost hundreds of millions of dollars that simply are
unavailable from the federal government.
The other future is one that offers tremendous hope: the
prosperity of hundreds of thousands of new jobs and an
economic rebirth that includes a cleanup-up environment.
It is a future that will cost billions of dollars to
create. And there is only one possible way to raise this
money: the Lake Calumet Airport.
While my airport proposal is good for the entire City of
Chicago, it is the Calumet region that will most benefit.
Construction and operation of this international airport
will create a huge economic engine that will pump new life
into this region.
It will bring new prosperity to the entire area, making it
the most dynamic in the state.
The economic benefits of this project are so immense--we
are talking billions of dollars each year--that it will
present no difficulty to create new communities for those
residents who must someday relocate nearby.
These communities can even be modeled after what is now in
place--if that is what the residents desire.
We can do all this. It's that big a project.
Chicago is a city of neighborhoods and of families. Many
Southeast Side residents have roots in the area going back
generations.
All of this can be preserved, both in the city and
throughout the Calumet region, as the new airport takes
shape.
I wouldn't have it any other way.
A few opponents of the airport believe the area is being
asked to sacrifice itself for the good of the rest of
Chicago.
I ask no sacrifice other than to give up the false promises
of the past, in favor of a real future for the community and
all who call it home.
____

Lake Calumet Airport: The Future of Chicago

Chicago's O'Hare International Airport is again the busiest
in the world for 1990, but this coveted title did not come by
chance. Chicago worked hard to become the transportation hub
of the nation.
Competition in the aviation world is more intense than
ever. Today other cities aggressively pursue this prestigious
leadership position in the nation's air transportation system
and the jobs and economic benefits that go with it.
Not all passengers using Chicago airports begin or end
their trips here. About half are connecting passengers using
the major airline hub operations at O'Hare.
This arrangement not only makes them customers of the
airport bringing in revenue, but also makes available a huge
selection of direct destinations for Chicagoans to points
around the world. This, in turn, makes Chicago a very
attractive location for business and industry that rely
heavily on convenient passenger and air freight service.
Aviation leadership means a great deal to Chicagoans. If
the new airport is not built, the city will likely continue
to lose business to Denver, Dallas, Atlanta and others that
more aggressively compete with new and improved facilities.
Should airline business go elsewhere, Chicago will lose many
of the jobs it now enjoys.
The central position occupied by Chicago in the nation's
air transportation system has been extremely important to the
economic growth and development of the entire region. The
economic impact of O'Hare--the state's seventh-largest
employer--is more than $9 billion each year and the airport
supports over 180,000 jobs. The Lake Calumet Airport will be
larger in size and generate even greater economic benefits
and jobs.
Forecasts for the future of air travel indicate that
Chicago's present airports will not be able to handle the
increased demands of air transportation expected in the next
century. As demand for air service increases, delays and
congestion at Chicago's airports are getting worse. As a
result, the share of business handled by Chicago already has
begun to decline.
In 1986, the Illinois Department of Transportation began a
feasibility study for a third Chicago airport. The results
clearly demonstrated that the location that would provide
efficient service to the most passengers is between Chicago's
Loop and Gary, Indiana.
Chicago Mayor Richard M. Daley proposed the Lake Calumet
airport site as the best means for revitalization of the
north-eastern Illinois and northwestern Indiana region.
Located halfway between the Loop and Gary, it is ideally
situated to attract a significant share of Chicago's air
transportation market. News organizations including the
Chicago Sun-Times, Crains's Chicago Business, the Chicago
Tribune and the Southtown Economist have recognized the
benefits of the Lake Calumet Airport concept, as have a broad
cross section of community, labor and business leaders.
Sponsored by the states of Illinois and Indiana and the
City of Chicago, a major study is now underway of five new
airport sites: the Chicago Lake Calumet location; expansion
of the Gary Municipal Airport; Rockville Township in
northwest Kankakee County; Peotone, Illinois in Will County;
and a location on the Illinois-Indiana state line east of
Beecher, Illinois--also in Will County.
The results of this study, to be completed in Fall 1991,
will compare the suitability of these sites as airports under
established financial, environmental, social and technical
criteria. The Bi-State Airport Policy Committee, made up of
the appointed representatives of the three sponsors, will
review these findings and recommend a site to be developed as
an airport for the region.
The advantages of the Lake Calumet site are that it
addresses the region's need for a new airport, not only by
attracting passengers, but also by improving the environment
(see ``Airport to provide health and environmental
benefits'', page 2). These advantages make it a strong
contender.
The lead time for developing a major airport is very long--
15 years or more. Several complex steps must be taken after
site selection is completed. They include: master planning,
environmental review, financing, land acquisition, site
preparation and construction.
The expenses are enormous. At a cost of $5 billion, only
location with the financial resources to cover such
expenditures can realistically aspire to build an airport in
today's environment. Chicago is the only site with that
capacity.
A new airport will allow Chicago to retain its leadership
in aviation well into the next century and continue to enjoy
the many economic benefits inherent in that position.

CHICAGO AVIATION MILESTONES

1927--``Chicago Airpark'' (now Midway) opens as the first
municipally owned and operated airport in United States.
1932--Midway Airport, the birthplace of municipal aviation,
becomes the world's busiest airport, serving 100,847
passengers annually.
1963--O'Hare International Airport is dedicated by
President John Kennedy, heralding the beginning of the jet
age in Chicago.
1970--O'Hare continues as the world's busiest airport,
serving 29 million passengers annually.
1990--On February 15, Mayor Daley unveils his proposal for
the Lake Calumet Airport to ensure Chicago's aviation
leadership into the 21st Century.
____

Airport Will Generate New Jobs

As the residents know, the Lake Calumet areas has been in
an economic slump that has lasted for nearly two decades.
Since many steel mills, factories and neighborhood businesses
were closed, many former workers have had to take lower
paying jobs.
Despite the many promises of jobs from same local
politicians over the years, nothing has been found to replace
the good-paying jobs that used to be plentiful for area
residents.
This is why the Lake Calumet Airport project is so
important for the area. It brings far more than just an
airport. It will revitalize the Southeast Side of Chicago and
the entire Calumet region. The airport will generate
thousands of jobs and business opportunities.
The Lake Calumet Airport will provide an economic rebirth
for an area with a rich heritage founded on a strong work
ethic. The airport is expected to generate nearly $14 billion
each year and bring approximately 200,000 new jobs to the
region once it becomes operational in the year 2010. The jobs
include every line of work in the aviation industry, along
with thousands of positions in airport spin-off businesses.
The project will require thousands of construction workers
to build the airport facilities and the new housing and
business developments that will spring up around the airport.
These jobs will offer competitive wages.
The Mayor is committed to establishing a program that gives
residents from the affected communities the first opportunity
to train and apply for these jobs.
The city will develop a comprehensive job training and
employment program by working with unions, business
developers, women- and minority-owned businesses and area
schools. City colleges and vocational schools will be
encouraged to establish courses to train residents for the
jobs that will be needed at the airport and in the many spin-
off businesses.
The city will encourage business developers to support the
job training programs. Contractors for the numerous project
tasks will be selected, in part, based upon their commitment
to support the local employment pool.

PARTIAL LIST OF THE JOBS THAT SUPPORT AIRPORT OPERATIONS
------------------------------------------------------------------------
Middle Range
Occupation Earnings ^*
------------------------------------------------------------------------
Ticket Agent......................................... $26,208-$34,996

[[Page H5163]]

Line Maintenance Inspector........................... 36,400-44,262
Motor Vehicle Mechanic............................... 30,555-41,808
Aircraft Inspector................................... 36,400-45,302
Aircraft Mechanic.................................... 30,784-39,728
Ramp Service Helper.................................. 20,093-34,778
Stock Clerk.......................................... 24,814-33,488
Aircraft Cleaner..................................... 15,413-28,600
Computer Programmer.................................. 25,766-30,576
Computer Systems Analyst............................. 34,684-59,202
Janitor, Porter, Cleaner............................. 11,315-27,706
Dispatchers.......................................... 29,640-55,120
------------------------------------------------------------------------
* In 1989 dollars.

Source: U.S. Dept. of Labor, Bureau of Labor Statistics.

____
South Suburban Airport: Aviation Demand in the Chicago Region

Backgroiund 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 for
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 can 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

Because of its central location and high concentration of
jobs and population, the Chicago region is a critical
location for connecting flights:
The recent BoozAllen 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
forecasts), the FAA has generated five 12-year forecasts,
five long-range national forecasts through 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
of 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;
BoozAllen 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.
BoozAllen says the international market is not
being well served.
Fares at O'Hare have risen above the average for large
airports.
O`Hare 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.

The Growing Imbalance in the Region's Growth, and Access to Jobs

South Suburban Airport: Aviation Demand in the Chicago Region

background assumptions for demand forecasts

Aviation demand is derived from a few basic factors:
The socio-economic dynamics and growth of the region.
The location/desirability of the region for providing
connecting flights.
The national/international growth in aviation.
The ability of the region to accommodate this demand
depends on:
The capacity of its airports.
The competitiveness of its fares.

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--primarily NIPC, but also
NIRPC have increased their 2020 forecasts, to reflect this
growth.
Woods & Poole Economics (the national forecast used in the
former IDOT study), 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=1,118,660
job growth; for 1990-2020=1,635,570 jobs growth.
NPA, author of the forecasts used by the City of Chicago in
1998 and once much lower, in 1999 raised their economic
forecasts to match those of W&P.

location drives connecting flights

Because 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.
The FAA's latest estimates put O'Hare's connecting at
54.70% slightly under its average percentage of the past 15
years. IDOT assumed 50% connecting for O'Hare in 2001; and
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 through 2020, and five terminal
area forecasts.
All the FAA national forecasts are higher than the study's
base forecast.

[[Page H5164]]

Although it continues to contest IDOT's forecasts, the City
of Chicago and its consultants are using forecasts that are
nearly identical.
The City and State are using IDOT socio-economic and
aviation forecasts for 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

While forecasts are an issue, it is the ability of the
region's airports to accommodate demand that is most serious.
The Chicago region has reached capacity. 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.
Delays have been significantly greater this year than last.
Small cities have been dropped from service.
Booz Allen says the international market is not being well
served.
Fares at O'hare have risen about the average for large
airports.

Ability to Accommodate Regional Demand is Declining

In 1998, (FAA statistics) O'Hare slipped to second place,
behind Atlanta's Hartsfield, in enplanements. Capacity
limited O'Hare's growth. The City of Chicago claimed that we
should, ``look at the Chicago aviation system (O'Hare and
Midway) which combined, make Chicago the world's busiest
system.'' Unfortunately, this claim is wrong; but a look at
the major regional aviation systems in the country shows that
Chicago is slipping in accommodating its regional demand.
In 1993, the Chicago regional system ranked second, behind
New York, only. By 1998, it was about to slip behind Los
Angeles, but rallied at year's end. By 2015, however, Chicago
will have slipped to fourth, behind New York, Los Angeles and
Atlanta.

MAJOR AIRPORT SYSTEMS
[Enplanements in thousands and regional rank]
----------------------------------------------------------------------------------------------------------------
1993-98 growth
Region 1993 1998 (percent) 2015
----------------------------------------------------------------------------------------------------------------
Chicago (O'Hare, Midway)........................ 33,017 (2) 39,231 (2) 16 65,551 (4)
Atlanta......................................... 22,282 (6) 35,255 (4) 53 65,719 (3)
New York (JFK, Laguardia, Newark)............... 36,855 (1) 43,895 (1) 20 70,514 (2)
Los Angeles (LAX, John Wayne, Ontario, Burbank). 31,878 (3) 38,510 (3) 25 71,377 (1)
----------------------------------------------------------------------------------------------------------------
\1\ FAA--Terminal Area forecasts Summary: fiscal Years 1998-2015 estimates had Chicago slipping to 3rd in 1998.
FAA--Terminal Area Forecasts Summary: Fiscal Years 1999-2015--source of above data.

Chicago's slippage, over the five-year period (1993-1998)
shown, indicates its inability to accommodate regional
aviation demands.
Chicago's regional growth, at 16%, lagged far behind
Atlanta's, at 53%.
Chicago also lagged behind the regions that have capacity-
constrained major airports--New York, Washington, San
Francisco and Los Angeles--because those regions have
utilized third and fourth airports.
Recent statistics indicate that O'Hare has slipped behind
in operations, as well as enplanements, a clear indication of
capacity constraints.
There are no socio-economic reasons for a dampened regional
demand.

Opportunities Already have been Lost; Others will Follow

It is always difficult to document events and forecasts
that do not materialize. But if you trust your forecasts,
some estimates can be made and general conclusions reached.
Over the past decade, the Chicago region has missed the
following opportunities:
When Delta could not accommodate its demand at O'Hare, it
moved its Midwest hub operations to Cincinnati. Cincinnati,
with a metro area population of 1.729 million in 1980 and
1.969 million in 1999, has watched its airport grow from
2.300 million enplanements, in 1986, to 9.327 million
enplanements, in 1997; and is forecast to grow to 21.826
million enplanements by 2015.
Both the U.S. Postal Service and Fed Ex have built major
facilities at Indianapolis Airport. United Airlines built its
maintenance facility there, as well. UPS built major
facilities at Louisville and Rockford Airports.
United Airlines, Chicago's hometown airline, has developed
its European hub at Dulles Airport. It now is transferring
increasing numbers of connections to Denver, the airport it
opposed so vehemently.
Major conventions have been lost, in total or in part, to
the Chicago area. An IDOT study showed that average fares
from across the country to Orlando and to Las Vegas were
lower than to Chicago despite the fact that average distances
to Chicago are smaller.
Chicago, over the past several years, has lot major
headquarters. Although many losses were due to acquisitions/
mergers, few new corporate headquarters have chosen to locate
in the Chicago region. Although proximity to a major airport
is one of three factors determining corporate location, such
proximity in Chicago is both costly and rare.
The region has missed a window of opportunity when: jobs
have grown beyond expectation; financing was available;
business economic conditions were very good; and commercial
development rebounded.
Without a major investment in airport infrastructure, by
2020 the Chicago region will have forfeited: 30.7 million
regional enplanements unaccommodated; 500,000 jobs and
attendant economic opportunities lost.
____

Chicago's Third Airport and the Future of the Chicago Region: An
Opportunity for 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; 11,000 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

[[Page H5165]]

Ryan, Senate President Pate Phillip--plus scores of local
mayors, hundreds of local businesses and hundreds of
thousands of residents, have joined in the effort to bring
the airport to the South Suburbs. Perhaps, with the airport
in place, we can begin to truly balance growth, encourage
infill development and share the wealth of the region.
____

The Planning Process: Twelve Years of Findings

The state agency responsible for planning the region's
transportation infrastructure, the Illinois Department of
Transportation (IDOT), has been planning for the region's
aviation needs for the past twelve years. IDOT, and its
aviation consultants, are convinced, without a doubt, that
Chicago's aviation demands will more than double by 2020. The
Federal Aviation Administration (FAA), the Airports Council
International (ACI) and other industry groups have forecasted
national growth of similar magnitude. For a brief time, the
City of Chicago agreed, as well. The Chicagoland Chamber
study predicts a five-fold increase in international traffic.
IDOT's studies support the contention that Chicago has an
excellent opportunity to be the dominant North American hub
for international flights, as well as its premier domestic
hub, into the next century. That point has been stated and
documented on many occasions by IDOT. The State's forecasts
have been corroborated, independently, by a decade of
observations. They are reinforced in the latest study for the
Chicagoland Chamber of Commerce. It is agreed, by all key
interest groups, that the Chicago region must increase its
aviation capacity.
The region cannot double its aviation service without
building major new airport capacity. O'Hare and Midway are
now at capacity. Enplanements already are being affected,
with growth limited to increases in plane size or load
factor; neither is expected to increase further. The City's
$1.8 billion investment in terminals will not increase
capacity. But, the adverse impact on the region already is
evident. Businesses and residents are witnessing major
increases in fares in the Chicago region, according to IDOT,
the USDOT, the GAO and the FAA, itself. Perhaps in response
to these obvious constraints, both the Chicagoland Chamber
and the Commercial Club of Chicago have begun to address the
region's aviation issues. The Chamber calls for O'Hare
expansion. The ``Metropolis 2020'' study also recognizes the
need for additional aviation capacity, with a call for
expansion of O'Hare and land banking of the Third Airport
site in Peotone. This call for action comes none too soon.
There are many indications that the Chicago region has begun
to suffer from capacity constraints.
Ten years ago, Chicago was one of the nation's least
expensive regions to fly to, due to its central location.
Obviously, its location has not changed; however, now, due to
O'Hare's capacity overload and higher fares, it is cheaper to
fly from all around the country to many other cities than to
Chicago. For instance, according to data supplied by the
airlines to the U.S. Department of Transportation, it is now
cheaper to fly from Green Bay to Las Vegas than from Green
Bay to Chicago. It is cheaper to fly from Seattle to Orlando
than from Seattle to Chicago. Something is wrong. Due to
capacity constraints, O'Hare's airlines are over-charging
their patrons by $750 million, annually (the difference
between average fares for large U.S. airports and those at
O'Hare). This fact is beginning to affect regional
development--especially conventions and tourism--but, it also
affects every major and start-up business, every individual
with family and friends in far-flung places. As is well-
known, access to a major airport is one of the top three
requirements of a locating or expanding business. But, access
must be at competitive fares. Expanding O'Hare will simply
buttress the monopolistic behavior of its airlines. Such
monopolistic practices currently are a major concern of
Congress.

the development alternatives

Aviation infrastructure must be expanded--and expanded
soon--to bring true competition, lower fares and increased
service to the region. The alternatives are two: adding
runways to O'Hare; or building the Third Chicago Airport. The
two alternatives have far different consequences. The
question is:
``Will we continue to spend great outlays of public-private
funds on an area that is overwhelmed with both riches and the
congestion those riches bring; or do we make those
investments in mature urban areas that are wanting for jobs
and economic development?''
As is clearly documented by a recent Chamber study,
O'Hare's benefits are conferred, primarily, on the west,
north and northwest suburbs. Virtually all of O'Hare's
employees reside near it. In addition, it has garnered high
concentrations of development. These concentrations, however,
have led to congestion and increased land values. High land
prices have forced businesses and developers to plan future
growth on the most environmentally-sensitive fringes of the
region and in areas farther removed from the region's central
core.

The Two Sides of the Coin

While unprecedented growth takes place around O'Hare, to
the north, the three million residents of the region who
reside south of McCormick Place are left with long trips to
the airport for flights and out of the running for the many
jobs it produces. The consequences, for South Side/South
Suburban residents and the dwindling businesses that serve
them, are the highest property tax rates in the State.
Because jobs have disappeared, residents have some of the
longest trips to work in the nation. Because transit only to
the Loop is convenient, recent job losses in that area, as
well, (11,000 since 1991; 25,000 since 1983) have compounded
the job searches of the South Side's residents. For decades,
regional planning agencies have called for the development of
moderate-income housing near job concentrations. Instead, let
us bring the jobs to the residents.
Recent public forums on the disparity of property tax rates
in Cook County's north and south communities have led to the
South's designation as the ``Red Zone,'' signifying its
concentration of highest property tax rates. This disparity
was not always so. It has occurred over the last three
decades and proliferated in the last two, as shown below. The
``Metropolis 2020'' study addresses this disparity issue by
calling for a sharing of revenues with the ``lesser haves.''
The more-responsive, enduring and--ultimately--more-equitable
solution is to provide the South Side with the economic
opportunities generated by the Third Chicago Airport.
Whether the region expands O'Hare or builds a supplemental
airport, OHare'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-related 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 South 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:
Dampened 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.

[[Page H5166]]

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.
____

Chicago's Third Airport and the Future of the Chicago Region: An
Opportunity for Smart Growth, Congestion Relief and Regional Balance

An Emerging Consensus

Finally, after nearly nine years of intense debate, there
is near unanimous agreement on the need for additional
airport capacity in the Chicago region. This is due, in part,
to several inescapable facts:
Operations at O'Hare have been at a virtual stall since
1994; hourly capacities have been reached; every day is
Thanksgiving eve.
The region's enplanements have grown only as Midway has
been able to take up a portion of the demand unaccommodated
at O'Hare; and as small markets are abandoned in favor of
large.
International enplanements have grown at rates over 9
percent, annually, but at the expense of domestic.
Domestic enplanements at O'Hare have grown by only 1.9
percent, annually, since 1993; and actually have declined
since 1998.
In 1998, Atlanta's Hartsfield Airport surpassed O'Hare as
the nation's busiest airport; it remained first in 1999 and
2000.
In 1999, the regional air system (O'Hare/Midway) nearly
slipped to third place, behind New York and Los Angeles. It
is forecast by the FAA to fall to fourth place (behind
Atlanta) by 2015.
In 2000, O'Hare had the nations worst delays.
Now, nearly all those who claimed that Chicago could handle
forecasted growth into the foreseeable future, are admitting
that the gap between demand and the ability to accommodate it
are growing farther apart and at a faster pace.
1998 studies by Booz-Allen & Hamilton (BAH) for the
Chicagoland Chamber claim that Chicago's capture of
international traffic--although considerable--is stifled.
BAH's recent (2000) update for the Commercial Club of
Chicago shows an international demand that is even higher
than estimated a year ago and higher than estimates made by
IDOT.
Overall forecasts undertaken by the City of Chicago's
consultants--and recently made public--are similar to the
forecasts of IDOT, but with higher connecting volumes.
Both United and American Airlines have called for the
construction of an added runway at O'Hare. United funded the
1998 BAH study.
Calls for an added runway also have come from the
Chicagoland Chamber, the Commercial Club and the Chicago
Tribune.
When the State of Illinois Department of Transportation
started planning for the regions Third Airport, in 1986, it
was suggested that the need would be evident by the turn of
the century. Later, detailed forecasts documented an unmet
demand of 7.1 million enplanements, by 2001. We have nearly
reached that first milestone and the evidence of unmet
demand, indeed, is great. Recent studies indicate that, by
2001, the Chicago region will have lost or foregone a large
portion (5.1 million) of the 7.1 million enplanement forecast
for the Third Airport.
The question no longer is whether we should add capacity to
the region but, rather, where we should add it.
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, in spite of this $1.8 billion investment,
the region's capacity will not be increased. The initial
infrastructure investment of $500 million ($2.5 billion
through 2010) to build the Third Chicago Airport, will
increase it, And, it will produce more than just added
aviation capacity. The Third Chicago Airport will provide
235,000 airport-related 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. Furthermore, both
businesses and residents of the airport's environs want it.
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
16.6 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 2000, these funds increased
by 50 percent; and Passenger Facility Charges (PFC's)
increased from $3 to $4.50. Currently, $1 in PFC's at O'Hare
yields $37 million per year. The Third Airport market
contributes nearly one fifth of these funds for O'Hare. At
the Full-Build forecast and $4.50 rate, the Third Chicago
Airport will generate $75 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 South
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.
Existing airports are at capacity.
Needed, is a facility to grow as future demand dictates.
The need is now. The region is beginning to experience the
costs of capacity constraints. These are:
Travel delays, often the nations worst.
Dampened aviation growth.
Increased and non-competitive fares.
Lost jobs, businesses and other opportunities.
There are two alternatives for meeting the region's demand;
they are:
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
airport access.
Doubling traffic at O'Hare forces job development farther
away from the region's core--the Chicago Central Area--and
from the South Side.
It will require additional land and structure acquisition.
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.
It will take 10-15 years to achieve capacity increases.
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.
Residents and businesses nearby want it built.
Resources are available to build the Third Airport.
The U.S. Congress, many businesses and consumers are
demanding access to and through the Chicago area.
Federal funds for airport development have increased by 50
percent.
Ultimately, the passenger pays through Passenger Facility
Charges; PFC rates have increased from $3.00 to $4.50 per
trip segment.
At full build, PFC's will provide $75 million, annually, by
2010.
____

Claiming the time in Opposition (Jackson)

[You need to be on your feet when the bill is called up]

[After the Speaker recognizes Mr. Lipiniski and Mr. Young]

Mr. Speaker: Point of order Mr. Speaker. May I inquire as
to whether either gentleman is opposed to the bill. As I
understand it, the bill was ordered reported favorably by
unanimous voice vote, and both of these gentleman were
present. Under the provisions of Rule XV, clause 1(c), debate
on a motion to suspend the rules is ``one-half in favor and
one-half in opposition, thereto.''
The notes to the Rule state where the time in opposition is
contested, ``The Speaker will accord priority first on the
basis of true opposition. . . ,''
Mr. Speaker, I will state for the record that I am in true
opposition to this bill, I therefore claim the time in
opposition.
____

rules of the house of representatives

Rule XV, clause 1

(c) A motion that the House suspend the rules is debatable
for 40 minutes, one-half in favor of the motion and one-half
in opposition thereto.
This provision (former clause 2 of rule XXVII) was adopted
in 1880 (V, 6821). It was amended and redesignated from
clause 3 to clause 2 of rule XXVII in the 102d Congress to
conform to the repeal of the former clause 2, relating to the
requirement of a second (H. Res. 5, Jan. 3, 1991, p. 39).
Before the House recodified its rules in the 106th Congress,
this provision was found in former clause 2 of rule XXVII.
Former clause 2 consisted of paragraph (b) and another
provision currently found in clause 1(a) of rule XIX
permitting 40 minutes debate on an otherwise debatable
question on which the previous question has been ordered
without debate (H. Res. 5, Jan. 6, 1999, p ----). Before the
adoption of this provision in 1880 (V, 6821) the motion to
suspend the rules was not debatable (V, 5405, 6820). The 40
minutes of debate is divided between the mover and a Member
opposed to the bill, unless it develops that the mover is
opposed to the bill, in which event some Member in favor is
recognized for debate (VIII, 3416). Where recognition for the
20 minutes in opposition is contested, the

[[Page H5167]]

Speaker will accord priority first on the basis of true
opposition, then on the basis of committee membership, and
only then on the basis of party affiliation, the latter
preference inuring to the minority party (VIII, 3415; Nov.
18, 1991, p. 32510). The Chair will not examine the degree of
opposition to the motion by a member of the committee who
seeks the time in opposition (Aug. 3, 1999, p. ----). When
the mover and the opponent divide their time with others, the
practice as to alternation of recognitions is not insisted on
so rigidly as in other debate (II, 1442). Debate should be
confined to the object of the motion and may not range to the
merits of a bill not scheduled for suspension on that day
(Nov. 23, 1991, p. 34189).
This paragraph formerly included a provision dealing with
the Speaker's authority to postpone further proceedings on
motions to suspend the rules and pass bills or resolutions.
It was added in the 93d Congress (H. Res. 998, Apr. 9, 1974,
pp. 10195-99), amended in the 95th Congress (H. Res. 5, Jan.
4, 1977, pp. 53-70), and amended further in the 96th Congress
(II. Res. 5, Jan. 15, 1979, pp. 7-16). It was deleted
entirely in the 97th Congress (H. Res 5, Jan. 5, 1981, pp.
98-113) when all of the Speaker's postponing authorities were
consolidated into clause 5 of rule I (current clause 8 of
rule XX).
____

Opening Statement Opposing H.R. 3479

There are many reasons why I oppose H.R. 3479. 1 want to
share some reasons why you too should be opposed to the
National Aviation Capacity Expansion Act.

1. RESPECT FOR THE INSTITUTION OF THE HOUSE

The Suspension Calendar is reserved for NON-CONTROVERSIAL
bills. This is a HIGHLY CONTROVERSIAL bill. This should
offend every House traditionalist and institutionalist. It
violates the integrity of the established, respected, and
utilitarian processes set up by the House of Representatives.
Even if you agree on the substance, you should be against the
process. H.R. 3479 should be a ``stand-alone'' bill that is
fully debated before the House--with the possibility of
adding amendments to improve the bill. It should not be on
the Suspension Calendar.

2. h.r. 3479 does not reflect the agreement between mayor daley and
governor ryan

Most of you believe you are voting to codify an agreement
between Chicago Mayor Richard M. Daley and Illinois Governor
George Ryan. But this bill does not reflect that deal. Their
agreement promised ``priority status'' for a south suburban
airport in Peotone and O'Hare expansion. This bill provides
for O'Hare expansion, but does not give ``priority status''
to Peotone.

3. if the issue is resolving the air capacity crisis, this bill is not
the most effective or efficient way to solve that problem

Both sides agree there is an air capacity crisis at O'Hare.
The disagreement comes over how best to resolve it. A new
south suburban airport in Peotone offers a faster, cheaper,
cleaner, safer, and more permanent solution. What do I mean?
I mean after O'Hare expansion is completed--if air travel
expands as projected--we'll still be in the same capacity
crisis that we're in today. So why spend more money, take
longer, increase environmental problems, put the flying
public at greater risk, support a temporary solution, and
increase the economic and racial divide in Chicago, when
there is a better way of resolving the current aviation
capacity crisis?

4. a new south suburban airport is a more economically just solution

O'Hare Airport is the economic magnet that provides jobs
and economic security for Chicago's North Side and the
northwest suburbs. Midway Airport is the economic magnet that
provides jobs and economic security for Chicago's southwest
side. There is no similar economic engine for Chicago's South
Side and south suburbs. O'Hare expansion puts 195,000 new
jobs and $19 billion of economic activity in an area that
already has an over-abundance. For example, the biggest
beneficiary of O'Hare is Elk Grove Village, a city of 35,000
people where over 100,000 people come to work everyday--three
jobs for every one person. The greatest beneficiary of
O'Hare, Mayor Craig Johnson of Elk Grove Village, is one of
the biggest supporters of Peotone. By contrast, some
communities in my district have 60 people for every one job.
Finally, it just so happens that the areas where O'Hare and
Midway Airports are located are primarily where whites live.
African Americans live primarily south and in the south
suburbs. But African American families need economically
stable families and communities, who have a future, and can
send their children to college too. We need greater economic
balance in the Chicago Metropolitan area so that all of the
people have jobs and economic security.

5. peotone is environmentally cleaner

Mr. Lipinski says fifteen environmental groups, including
the Sierra Club, support the language in this bill. He's
implying they've endorsed it, but he knows better. They've
not endorsed it. I also asked Mr. Lipinski to supply me with
the names of the other environmental groups he says support
the language in this bill--and he's failed to do so. O'Hare
is already the largest polluter in the Chicago area. Doubling
the number of flights into the 7,000 acres that houses O'Hare
means pollution levels will explode. A recent study found
there was an excess of 800 new incidences of cancer each
year--over and above what would be expected based on the
state's average--in eight northeastern communities downwind
of O'Hare. Peotone's 24,000 acre site has a built-in
environmental safety zone.

6. this bill is precedent setting

For economic reasons, San Francisco wanted to add new
runways, but there were environmental groups that objected.
In Atlanta a few years back, Fulton County commissioners went
to battle to stop a proposed sixth runway at Hartsfield. In
New York, a controversy sprung up over a 460-foot safety
overrun at LaGuardia because objections were raised by
residents. Mayor James Hahn made a campaign pledge opposing
expansion at LAX in Los Angeles, but a pro-expansion
coalition is forming. H.R. 3479 sets a precedent that if
these controversies can't be worked out locally, they can
always be brought to Congress and passed by a suspension of
the rules without debate or amendments. This is like putting
the Inglewood Police in charge of homeland security!

7. peotone would provide more competition and lower airfares

The O'Hare expansion plan is an anti-consumer measure. Two
airlines--American and United--control roughly 90 percent of
the flights in and out of O'Hare. It's a duopoly. And due to
a lack of competition, fares at O'Hare continue climbing
higher and faster than the national average. Six years ago,
O'Hare fares were 21 percent above the national average.
Today, they are 33 percent above the national average and
cost consumers an extra $1 billion annually.

8. THE SUPREME COURT WILL LIKELY FIND H.R. 3479 UNCONSTITUTIONAL

The U.S. Supreme Court stated in Printz v. United States
(1997) that ``dual sovereignty'' is incontestable. It
emphasized that the constitutional structural barrier to
Congress intruding on a State's sovereignty could not be
avoided by claiming that congressional authority was: (a)
pursuant to the Commerce Power--it will create 195,000 jobs
and $19 billion in economic activity; (b) the ``necessary and
proper'' clause of the Constitution--there's an aviation
capacity crisis; or (c) that the federal law ``preempted''
state law under the Supremacy Clause--that Congress can use
its power to solve the impasses by overriding the state. In
short, all of the arguments the Daley/Ryan forces have been
using are unconstitutional.

CONCLUSION

If you care anything about the institutional integrity of
the House, you should vote against this bill because it's
inappropriately on the alleged ``non-controversial''
Suspension Calendar. If you think you're voting to build
O'Hare and Peotone simultaneously, you're not--and you should
vote against this bill. If you think you're solving the air
capacity crisis in Chicago, you're not--vote against H.R.
3479. If you think you're voting for a morally sound, and an
economically and racially just bill, you're not--vote no. If
you think you're protecting the environment and consumers,
you're not--again you should be against this bill. If you
think H.R. 3479 is constitutional, it's not--and both
Democrats and Republicans should vote against this bill. Vote
``No'' on H.R. 3479!
____

Economic Imbalance

Make no mistake. A ``YES'' vote on this bill today is a
vote to widen and reinforce the economic and racial divide in
Chicago.
For too long, the Chicago area has been fractured--divided
in two by geography, opportunity and race.
One Chicago--the North Side and Northwest suburbs--is
exploding with growth. With O'Hare having replaced the
Downtown Loop as Chicago's economic center, jobs and
investment located near the airport have increased
dramatically. Today, some North West suburbs, which are
primarily white and affluent, have 3 jobs for every person.
This Chicago boasts the best schools, the least crime and the
lowest property tax rates.
In sharp contrast, the other Chicago--the South Side and
south suburbs--is slumping in depression. Today, in some
South Side neighborhoods and south suburbs, which are
predominantly Black and poorer, there are 60 people for every
one job. Jobs and factories have been replaced with
unemployment, welfare and crime; local property values have
slumped; and local school funding has withered as prison
construction has blossomed. In this Chicago, the lack of jobs
and investment is disrupting lives, corrupting children and
destroying communities.
Look at this Rand McNally easy finder map of Chicago. It
includes O'Hare, but doesn't include much of the south side
and none of the south suburbs. It's as if Chicago ends at the
Museum of Science and Industry.
This tale of two cities is a classic and persistent divide
for which Chicago, although not unique, has long been
infamous. But rather than bridging this gap and uniting these
two Chicagos with a third airport, this bill further
concentrates all aviation and economic growth in the already
over-saturated corridor from Downtown Chicago to O'Hare.
Meanwhile, the South Side and beyond, get nothing.
This imbalance now poses a problem for aviation expansion.
The massive development surrounding O'Hare makes airport
expansion there costly, time-consuming, difficult and
intrusive. Congestion often brings area expressways to a
halt; O'Hare is the state's largest polluter; and safety is a
growing concern because O'Hare is surrounded by

[[Page H5168]]

residential neighborhoods. Expansion would only compound
these problems.
The question we must ask ourselves is: Do we continue to
invest in an area that is overwhelmed with riches and
congestion or do we invest in areas that desperately need
jobs and economic development?
I brought with me just some of the many books that document
the damaging effects of Chicago's persistent disparities
between north and south.
Let me read a passage from just one of these, titled ``When
Work Disappears,'' by noted University of Chicago and Harvard
University scholar William Julius Wilson. Professor Wilson
writes, ``Over the last two decades, 60 percent of the new
jobs created in the Chicago metropolitan area have been
located in the northwest suburbs of Cook and DuPage County
(surrounding O'Hare). African-Americans constitute less than
2 percent of the population in these areas.'' He concluded,
``The metropolitan black poor are becoming increasingly
isolated.''
Let's not add to this hefty volume. Let's not continue to
perpetuate and exploit this divide. Let's relegate these
books to the history section and begin our own new chapter of
balanced economic growth and justice in Chicago. I urge a
``no'' vote on this bill.
____

Suspension Calendar Arguments To Be Against H.R. 3479

The Suspension Calendar is a procedure that allows House
members to vote on non-controversial bills--like paying
tribute to Ted Williams.
Putting H.R. 3479 on the Suspension Calendar, for House
traditionalists and institutionalists, ought to strike you as
violating the integrity of the established, respected, and
utilitarian rules set up in the House. It is inconsistent
with the institutional traditions of this body. This is an
abuse of power!
It is highly unusual for a bill defeated under suspension
of the rules to ever be brought back in the same manner--not
to mention a week later. In the entire 106th Congress, no
bill defeated on the Suspension Calendar was brought up
again. Six Suspension bills have failed in the 107th
Congress--all six during the second session. Two of the six
were later passed as stand-alone bills in regular order. Not
one of the six was brought up again under suspension of the
rules. This is an arrogant use of power!
H.R. 3479 should be a ``stand-alone'' bill that is fully
debated before the House--with the possibility of adding
amendments to improve the bill.
Even if you are with this bill on substance you should be
against it on process. This makes a mockery of the suspension
of the rules, which is reserved for noncontroversial bills.
This does not have the full support of the Illinois
delegation. In the other body, one Illinois senator staunchly
opposes it, and one strongly supports it.
This bill is far from being non-controversial. It is
controversial for the Illinois delegation, controversial for
the community surround O'Hare, controversial for the South
Side and south suburbs, and controversial throughout the
entire state. The Speaker's participation and the lobbying
effort of the last few days underscores the controversy. It
does not conceal, but reveals that this is a controversial
issue. It does not obscure it, it underscores it. It's so
controversial that it's on the Suspension Calendar in order
to limit discussion and debate, and prevent amendments.
Today's vote is not about the most efficient and effective
way to resolve the aviation capacity crisis at Chicago's
O'Hare International Airport. It is not about sound policy
and regular procedure, but raw politics and brute political
power. This should not be on the Suspension Calendar!
____

H.R. 3479 Does Not Reflect The Daley/Ryan Agreement

This bill has been touted as codifying a secret deal struck
between Mayor Richard M. Daley and Governor George Ryan--a
deal without public input, where nobody has seen the actual
plans, and where total costs are still unknown. But this bill
is not that secret deal.
The Chicago Tribune reported on December 6, 2001, that
Mayor Daley and Governor Ryan had reached ``a deal that would
build new runways at O'Hare International Airport. . . . The
deal also calls for construction of a new airport near
Peotone Ryan has wanted. Daley, who has raised concerns that
Peotone would compete with O'Hare, agreed to work with the
governor to seek federal funds for construction of the third
airport.''
In a December 7th AP story, Senator Dick Durbin said,
``O'Hare and Peotone are not mutually exclusive. It is not an
`either-or' proposition. We need both and we will have both.
. . . On Wednesday, Ryan and Daley reached an historic
agreement that would modernize O'Hare International Airport,
including east-west parallel runways; construct a south
suburban airport near Peotone. . . . Durbin said construction
of Peotone will provide a huge economic boost to the south
suburbs and help provide travel access to fast-growing areas
like Will County.''
The Chicago Tribune, in a December 11, 2001, editorial,
said, ``Thanks to Daley and Ryan, the gridlock may finally be
broken. They have a sound plan. The parameters of it have
been before the public for five months. It answers the
nightmare of flight delays at O'Hare and gives the south
suburbs their best chance to build an airport at Peotone.''
Despite these reports, and what may be said here on the
floor today, this bill does not codify a key part of the
agreement reached by Mayor Daley and Governor Ryan.
Mr. Speaker, this bill does not make construction of a
south suburban airport near Peotone a federal priority.
While it's coming to light that corporate chieftains are
cooking books, fudging numbers, and misrepresenting the facts
to the public, it is critical that this body, the peoples'
House, not do the same.
____

10th Amendment Arguments Against H.R. 3479

Even if H.R. 3479 becomes law, a federal court is likely to
find it unconstitutional under the 10th Amendment, which
gives certain powers exclusively to the States, including the
power to build and alter airports.
The U.S. Supreme Court stated in Printz v. United States
(1997) that ``dual sovereignty'' is incontestable.
It emphasized that the constitutional structural barrier to
Congress intruding on a State's sovereignty could not be
avoided by claiming that congressional authority was:
(a) pursuant to the Commerce Power--it will create 195,000
jobs and $19 billion in economic activity;
(b) the ``necessary and proper'' clause of the
Constitution--there's an aviation capacity crisis; or
(c) that the federal law ``preempted'' state law under the
Supremacy Clause--that Congress can use its power to solve
the impasses by overriding the state.
In short, all of the arguments for codifying the Daley/Ryan
deal in federal law are unconstitutional.
It sets a dangerous precedent by allowing the federal
government to pre-empt state law requiring approval of
airport construction and expansion--approval that requires
the blessing of the state legislature.
This bill 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.
If this bill passes, it would invite congressional
interference on other important aviation issues, leading to a
potential rash of demands from various localities for
priority standing for airport funding, bypassing reasonable
administrative planning, and the environmental review
process. Airport expansion issues are bubbling up
everywhere--Boston Logan's, New York's LaGuardia, Cleveland's
Hopkins, Atlanta's Hartsfield, San Francisco's SFO, and Los
Angeles' LAX. Will your state legislature be next to lose its
power to decide local airport matters?
Indeed, H.R. 3479 stands federalism on its head. It makes
about as much sense as putting your local police department
in charge of homeland security.
____

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.,
U.S. 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, H.R. 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

[[Page H5169]]

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, 6 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 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 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 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 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 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

[[Page H5170]]

Power. Normally, this controversy surrounding the proposed
expansion of O'Hare Airport would be left to the state
political process. Under Illinois law, the cities in this
state have only the power that the State Constitution or the
legislature grants to them, subject to whatever limits the
State imposes. This legal principle has long been settled.
Nearly a century ago, the U.S. Supreme Court, in Hunter v.
City of Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151
(1907) held that, under the U.S. Constitution, cities are
merely creatures of the State and have only those powers that
the State decides to give them, subject to whatever limits
the States choose to impose:
This court has many times had occasion to consider and
decide the nature of municipal corporations, their rights and
duties, and the rights of their 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 take over
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 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 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 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. 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 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

[[Page H5171]]

views the take title provision as lying outside Congress'
enumerated powers, or as infringing upon the core of state
sovereignty reserved by the Tenth Amendment, the provision is
inconsistent with the federal structure of our Government
established by the Constitution.
The proposed Durbin-Lipinski legislation is very much like
the law that six justices invalidated in New York. The O'Hare
bill provides that, no matter what the State chooses, ``it
must follow the direction of Congress.'' The State has ``no
option other than that of implementing legislation enacted by
Congress.''
The Court in New York went on to explain that there are
legitimate ways that Congress can impose its will on the
states:
This is not to say that Congress lacks the ability to
encourage a State to regulate in a particular way, or that
Congress may not hold out incentives to the States as a
method of influencing a State's policy choices. Our cases
have identified a variety of methods, short of outright
coercion, by which Congress may urge a State to adopt a
legislative program consistent with federal interests. Two of
these methods are of particular relevance here.
The Court then discussed those two alternatives. First,
there is the spending power, with Congress attaching
conditions to the receipt of federal funds. The proposed
Durbin-Lipinski legislation rejects the spending power
alternative. Second, ``where Congress has the authority to
regulate private activity under the Commerce Clause, we
have recognized Congress' power to offer States the choice
of regulating that activity according to federal standards
or having state law pre-empted by federal regulation.''
The proposed Durbin-Lipinski legislation rejects that
alternative as well. It does not propose that Congress
directly takeover and expand O'Hare Airport. Instead, it
proposes that the City of Chicago be allowed to exercise
power that the State does not allow the City to exercise.
New York v. United States did not question ``the authority
of Congress to subject state governments to generally
applicable laws.'' But Congress cannot discriminate against
the States and place on them special burdens. It cannot
commandeer or command state legislatures or executive branch
officials to enforce federal law. Congress can regulate
interstate commerce and States are not immune from such
regulation just because they are States. For example,
Congress can forbid employers from hiring child labor to work
in coal mines, whether a private company or a State owns the
coal mine and employs the workers.
Printz v. United States. Following the New York decision,
the Court invalidated another federal statute imposing
certain administrative duties on local law enforcement
officials, in Printz v. United States. The Brady Act, for a
temporary period of time, required local law enforcement
officials to use ``reasonable efforts'' to determine if
certain gun sales were lawful under federal law. The federal
law also ``empowered'' these local officers to grant waivers
of the federally prescribed 5-day waiting period for handgun
purchases Note that the proposed Durbin-Lipinski legislation
will also ``empower'' the City of Chicago to do that which
Illinois does not authorize the city to do.
To make the analogy even more compelling, the chief law
enforcement personal suing in the Printz case said that state
law prohibited them from undertaking these federal
responsibilities. That, of course, is the exact position in
which Chicago finds itself. State law prohibits Chicago from
entering into and committing to these federal
responsibilities (e.g., the agreements between Chicago and
the FAA in Sec. 3(f) of the proposed Durbin-Lipinski
legislation call for construction as a ``federal project''
but then require Chicago to either construct or allow
construction without a permit from the State of Illinois).
We should realize that the proposed Durbin-Lipinski
legislation--in commanding and singling out the State of
Illinois to, in effect, repeal its legislation governing the
powers delegated to the City of Chicago--is quite unusual and
not at all in the tradition of federal legislation. For most
of our history, Congress would explicitly only ``recommend''
or ``request'' the assistance of the governors and state
legislatures in implementing federal policy. It is only in
very recent times that Congress has sought explicitly to
commandeer or order the legislative and executive branches of
the States to implement federal policies. Because such
federal legislative activity is recent, the case law in this
area is recent, but the case law is clear in prohibiting this
type of federal assertion of power.
New York v. United States held that Congress cannot
``command a State government to enact state regulation.''
Congress may regulate interstate commerce directly, but it
may not ``regulate state governments'' regulation of
interstate commerce.'' The Federal Government may not
``conscript state governments as its agents.'' Congress has
the ``power to regulate individuals, not States.''
In short, there are important limits on the power of the
federal government to commandeer the state legislature or
state executive branch officials for federal purposes.
Another way to think about this issue is that, to a certain
extent, the Constitution forbids Congress from imposing what
recently have been called ``unfunded mandates'' on state
officials. Congress cannot simply order the States or state
officials or a city to take care of a problem. Congress can
use its spending power to persuade the States by using the
carrot instead of the stick.
While there are those who have attacked the restrictions
that New York v. United States have imposed on the Federal
Government, it is worth remembering the line-up of the Court
in Maryland v. Wirtz when the justices first considered this
issue. That case rejected the applicability of the Tenth
Amendment and held that it was constitutional for Congress to
set the wages, hours, and working conditions of employees,
including state employees in interstate commerce. However,
Justice Douglas, who was joined by Justice Stewart,
dissented. Douglas found the law to be a ``serious invasion
of state sovereignty protected by the Tenth Amendment'' and
``not consistent with our constitutional federalism.'' He
objected that Congress, using the broad commerce power, could
``virtually draw up each State's budget to avoid `disruptive
effect[s]' '' on interstate commerce. New York v. United
States prevents this result.
The ``generally applicable'' restriction is important, and
it explains Reno v. Condon. Congress enacted the Driver's
Privacy Protection Act (DPPA), which limited the ability of
the States to sell or disclose a driver's personal
information to third parties without the driver's consent.
Chief Justice Rehnquist, for a unanimous Court, upheld the
law as a proper regulation of interstate commerce and not
violating any principles of federalism found in New York v.
United States or Printz because the law was ``generally
applicable.''
Reno grew out of a congressional effort to protect the
privacy of drivers' records. As a condition of obtaining a
driver's license or registering a car, many States require
drivers to provide personal information, such as name,
address, social security number, medical information, and a
photograph. Some States then sell this personal information
to businesses and individuals, generating significant
revenue. To limit such sales, Congress enacted the DPPA,
which governs any state department of motor vehicles (DMV),
or state officer, employee, or contractor thereof, and any
resale or re-disclosure of drivers' personal information by
private persons who obtained the information from a state
DMV. The Court concluded: ``The DPPA's provisions do not
apply solely to States. Private parties also could not buy
the information for certain prohibited purposes nor could
they resell the information to other parties for prohibited
purposes, and the States could not sell the information to
the private parties for certain purposes if the private
parties could not buy it for those purposes.
Unlike the law in New York, the Court concluded that the
DPPA does not control or regulate the manner in which States
regulate private parties, it does not require the States to
regulate their own citizens, and it does not require the
state legislatures to enact any laws or regulations. Unlike
the law in Printz, the DPPA does not require state officials
to assist in enforcing federal statutes regulating private
individuals. This DMV information is an article of commerce
and its sale or release into the interstate stream of
business is sufficient to support federal regulation.
The DPPA is a ``generally applicable'' federal law
regulating commerce because it regulates the universe of
entities that participate as suppliers to the market for
motor vehicle information--the states as initial suppliers
and the private resellers or redisclosers of this
information. ``South Carolina has not asserted that it does
not participate in the interstate market for personal
information. Rather, South Carolina asks that the DPPA be
invalidated in its entirety, even as applied to the States
acting purely as commercial sellers.''

conclusion

MEMORANDUM

July 13, 2002.
Re Impact of the Lipinski/Oberstar Bill on Illinois Law and
Unchecked Condemnation Powers for Chicago to Condemn Land
in Other Communities.
To: Senator Peter Fitzgerald; Congressman Henry Hyde;
Congressman Jesse Jackson, Jr.
From: Joe Karaganis.

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

[[Page H5172]]

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 form 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 implications 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.
____

Good Government vs. City Hall Corruption

It's hard to pinpoint Chicago City Hall's position on
airports because it changes about as often as the wind in the
Windy City.
In 1988, City Hall opposed a new airport or O'Hare
expansion, saying they were unnecessary. In 1990, City Halls
said a new airport was needed and proposed building one on
the South Side near Lake Calumet. In 1994, City Hall
abandoned the Lake Calumet Airport proposal and once again
claimed no new runways were needed.
Just last year, the Mayor held a press conference to
reiterate that O'Hare could handle all regional capacity
needs until 2012, and that no runways were needed. Then in
2002, the Mayor changed course again and said six new runways
were needed at O'Hare immediately. We don't need it. We need
it. We don't need it. We need it. What is it?
Through all the flipflopping, one factor has remained
consistent. That is City Hall's desire to protect cronyism
and pin-striped patronage at O'Hare. The Chicago Tribune last
year won a Pulitzer Prize for writing about what it called in
one editorial: ``Daley and the stench at O'Hare.'' Mr.
Speaker, I ask for unanimous consent to enter this editorial
into the record.
The Tribune's continuing series recounted numerous insider
deals that enriched the Mayor's family, friends and
contributors. And these aren't penny-annie deals. For
example, the City handed out $400 million to 30 engineering
firms in no-hid contracts--when the City denied it was
working on expansion plans. A longtime mayoral friend was
paid $1.8 million to arrange a meeting with a concessionaire.
Another friend was paid $480,000 to lobby for O'Hare, even
though he wasn't a lobbyist. Meanwhile, airport vendors,
concessionaires and businesses tied to O'Hare gave the mayor
$360,000 in campaign gifts, according to the Tribune.
More recently, Chicago unveiled plans to spend $1.3 billion
for terminal improvements at O'Hare. After viewing the plan,
U.S. Transportation Secretary Norman Mineta remarked that the
massive project included ``not one dime for new capacity.''
Mineta joked, ``O'Hare will have the finest food court in
America.''
Now the City says trust us to build six new runways for
billions of dollars.
The bottom line is: City Hall's repeated flip-flopping; its
insider deals; and decades of deceit on this important issue
have left it with little credibility.
I oppose such a deal. The City has strained its credibility
and blocked the doorway to opportunity long enough. The
region is paying with lost jobs, high fares, poor service and
political corruption.
This airport debate is about good government. A third
airport would protect taxpayers interests and improve
service, while also resolving our nation's aviation crisis
quicker, cheaper, safer and cleaner.
____

Consumer Protection Fares

The O'Hare expansion plan is an anti-consumer measure.
Two airlines--American and United Airlines--control roughly
90 percent of the flights in and out of O'Hare. Combined,
they have a monopoly.
Due to a lack of competition, fares at Chicago O'Hare
continue climbing higher and faster than the national
average. Six years ago, O'Hare fares were 21 percent above
the national average. Today, they are 33 percent

[[Page H5173]]

above the national average. In real terms, Chicagoans today
pay more than $1 billion a year in overcharges to use O'Hare.
The Secretary of Transportation in Illinois often tells a
story about his travels from Springfield Illinois to
Washington. If he flies from Springfield to O'Hare and then
to Washington, it costs him about $400. However, if he drives
from Springfield to O'Hare and then flies to Washington--on
the exact same plane--it costs him nearly $1,500, or three
times more. That's because Springfield has competition. From
there, one can choose to fly through Chicago or St. Louis.
The poor traveler in Chicago has few options. And he or she
pays mightily.
O'Hare's monopoly fares have been the subject of analysis
in recent years by the General Accounting Office, the U.S.
DOT and the State of Illinois, among others. Each study
concluded that O'Hare fares are considerably higher than
average simply because of a lack of competition.
A lack of competition has also resulted in airlines
reducing service or methodically abandoning service to less-
profitable markets, which severely hurts the economy of small
and mid-sized cities.
In the past 10 years, O'Hare has terminated service to more
than a dozen markets, from South Carolina to North Dakota.
Will adding new runways at O'Hare increase competition or
lower fares? It's unlikely.
A few years ago, Congress lifted the restrictions on slots
for commuter flights at O'Hare--theoretically in the name of
increasing competition. However, the vast majority of the new
slots were snapped up by commuters planes owned by or
affiliated with United and American. Why, because only United
and American provide a network of connecting flights.
Now, the airlines will tell you that no carrier wants to
come to Peotone. But that's simply not true. At least two
airlines--Spirit and Virgin--have said they would love to fly
out of a third airport. Moreover, last summer the CEO of
American Airlines, Donald Carty, said American would use
Peotone.
This airport debate is about consumer protection. A third
airport will increase competition, which will reduce fares,
while also resolving our nation's aviation crisis quicker,
cheaper, safer and cleaner.
____

Stop o'hare expansion

let 2,000 souls rest in peace

Dear Colleague: Two historic cemeteries stand in the path
of the runways proposed under a plan to expand Chicago O'Hare
International Airport. For this and many reasons more, we
urge you to oppose H.R. 3479 or any legislation that would
essentially force the Federal Aviation Administration to tear
down and reconstruct O'Hare. We believe this legislation is
constitutionally suspect, deeply divisive, environmentally
flawed, wasteful and dangerous.
Many of you might be wondering why this issue should matter
to you. Well, the answer is simple. If this atrocity could
happen in our backyards, it could happen in yours!
On the reverse side of this page, please read an article
that was printed in the Chicago Sun-Times detailing the
``royal mess'' that happened when contractors tried to move
thousands of bodies in a nearby cemetery when St. Louis
Lambert Airport expanded in the 1990s.
Near O'Hare, there are two cemeteries: St. Johnannes
Cemetery (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
more than 150 years since their first church members were
laid to rest in the 1840s.
These individuals, their descendants and 1,600 other souls
lie at rest in St. Johnannes, including some buried within
the last year. Hundreds of others lie at rest at Resthaven,
including mayors, business owners, farmers, factory workers,
soldiers and housewives. Members of the Potowatamie tribe
also are buried at Resthaven.
Illinois law states that a cemetery cannot be removed
without the owner's consent, but that hasn't stopped the City
of Chicago from planning to dig up these souls despite both
churches stating publicly that they do not intend to provide
consent.
Again, we implore you to vote against H.R. 3479. Let the
dead rest in peace.
Henry Hyde.
Jesse Jackson, Jr.
Phil Crane.
____

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

Moving Graves Can Be `Royal Mess'

(By Robert C. Herguth, Transportation Reporter)

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 can 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.
In another room Tuesday in another part of DuPage, a
different aspect of the same thorny issue 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
in 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.

[[Page H5174]]

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.''
____

Floor Statement of U.S. Representative Jesse L. Jackson, Jr., Opposing
H.R. 3479: The National Aviation Capacity Expansion Act Of 2002--
Monday, July 15, 2002 Washington, DC

Mr. Speaker, I ask unanimous consent to revise and extend
my remarks.
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
noncontroversial for taxpayers!
Tearing down and rebuilding O'Hare is estimated to take 15-
to-20 years, assuming it proceeds on schedule, without
lawsuits--not likely--while building a new South Suburban
Airport would take five years, it would expand thereafter as
need arises, and would be a more permanent solution to the
capacity crisis. When the new O'Hare is completed, we will be
in the same position we are today with regard to the air
capacity crisis. How is that not controversial?
This bill will double the noise pollution in the suburban
communities surrounding O'Hare. It is hardly non-
controversial in the polluted northwest suburbs of Chicago.
Doubling the traffic in the air space around O'Hare from
900,000 to 1.6 million operations will make flying into
O'Hare less safe for the public--hardly noncontroversial for
the flying public.
This bill will increase environmental pollution--O'Hare is
already the number one polluter in Illinois--hardly non-
controversial for those having to live in the increased
pollution.
The Chicago Tribune won a Pulitzer Prize for documenting
``sleaze'' surrounding the City of Chicago and past O'Hare
construction, vender, and service contracts. By passing this
bill--and removing the Illinois Aeronautics Law and by-
passing the Illinois General Assembly--we are virtually
sanctioning more ``sleaze'' to be found around O'Hare
construction, vender, and service contracts. Since when has
such potential ``sleaze'' become non-controversial for
Congress.
I don't consider the Federal Government running over any
future Governor of Illinois, the Illinois General Assembly,
the Illinois Aeronautics Law, and the 10th Amendment of the
U.S. Constitution--to build an airport--non-controversial.
Finally, we're already finding out how controversial this
bill is as Judge Hollis Webster on July 9, 2002, stopped the
City of Chicago from running rough-shod over their northwest
suburban neighbors by illegally trying to buy up and tear
down their homes and businesses to make room for O'Hare
expansion. This is just one of many controversial lawsuits
that have been and will be filed in the future if this bill
passes and becomes law.
How is tearing down and rebuilding O'Hare--which will be
three times as expensive, take three times longer, be less
protective of the environment, make the skys less safe, and
be a less permanent solution than building a third airport--
non-controversial? I say, solve the current air capacity
crisis by building Peotone first, faster, cheaper, and safer,
then evaluate what needs to be done with O'Hare.
H.R. 3479 falls 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 rights, I believe new
amendments must be added to the Constitution to overcome the
limitations of the Tenth Amendment. However, building
airports is not a human right. Therefore, in the present
context, I agree that building airports is appropriately
within the purview of the states.
I believe attempts by Congress to strip the authority of
Governor Ryan and the Illinois Legislature over the
delegation and authorization to Chicago of state power to
build airports--along with the authority of governors and
state legislatures in a host of other states such as
Massachusetts (Logan), New York (LaGuardia and JFK), New
Jersey (Newark) California (San Francisco airport), and the
State of Washington (Seattle)--raise serious constitutional
questions.
Under the framework of federalism established by the
federal constitution, Congress is without power to dictate to
the states how the states delegate power--or limit the
delegation of that power--to their political subdivisions.
Unless and until Congress decides that the federal government
should build airports, airports will continue to be built by
states or their delegated agents (state political
subdivisions or other agents of state power) as an exercise
of state law and state power. Further compliance by the
political subdivision of the oversight conditions imposed by
the State legislature as a condition of delegating the state
law authority to build airports is an essential element of
that delegation of state power. If Congress strips away a key
element of that state law delegation, it is highly unlikely
that the political subdivision would continue to have the
power to build airports under state law. The political
subdivision's attempts to build runways would likely be ultra
vires (without authority) under state law.
Under the Tenth Amendment and the framework of federalism
built into the Constitution, Congress cannot command the
States to affirmatively undertake an activity. Nor can
Congress intrude upon or dictate to the states, the
prerogatives of the states as to how to allocate and exercise
state power--either directly by the state or by delegation of
state authority to its political subdivisions.
As stated by the United States Supreme Court:
``[T]he Framers explicitly chose a Constitution that
confers upon Congress the power to regulate individuals, not
States. . . . We have always understood that even where
Congress has the authority under the Constitution to pass
laws requiring or prohibiting certain acts, it lacks the
power directly to compel the States to require or prohibit
those acts.''--New York v. United States, 505 U.S. 144, at
166 (1992) (emphasis added).
It is incontestable that the Constitution established a
system of ``dual sovereignty.''--Printz v United States, 521
U. S. 898, 918 (1997) (emphasis added).
Although the States surrendered many of their powers to the
new Federal Government, they retained ``a residuary and
inviolable sovereignty,'' The Federalist No. 39, at 245 (J.
Madison). This is reflected throughout the Constitution's
text.
Residual state sovereignty was also implicit, of course, in
the Constitution's conferral upon Congress of not all
governmental powers, but only discrete, enumerated ones, Art.
1, 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.''--ld 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
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.

[[Page H5175]]

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. 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 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 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 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.
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 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.
____

Testimony of Congressman Jesse L. Jackson, Jr. Before The Committee On
The Judiciary, House of Representatives, United States Congress

Oversight Hearing On The State of Competition in the Airline Industry--
June 14, 2000

Mr. Chairman, Ranking Member Conyers, members of the
Judiciary Committee. Thank you for the opportunity to present
my concerns about monopoly abuses in the airline industry--
particularly the apparent agreement by the so-called ``Big
Seven'' major airlines not to compete in each other's
Fortress Hub markets. I know much of the discussion at
today's hearing will focus on the recently announced merger
between United and US Air and the potential responsive
mergers between American and Northwest and between Delta and
some other major airline. That these mergers are anti-
competitive and should be prohibited is self-evident.
While I will address the issue of these proposed or
potential mergers, I believe it important to focus on today's
monopoly environment in the airline industry. It is true that
the proposed mergers will make the monopoly problem worse.
But what needs to be emphasized is that today--even if the
proposed or potential mergers never reach fruition or are
ultimately rejected--the major airlines have currently
created a monopolistic system of Fortress Hubs that
represents a blatant violation of federal antitrust laws.
Moreover, if government estimates are correct, these current
monopoly abuses at Fortress Hubs are costing air travelers--
especially business travelers--billions of dollars a year in
excess fares.
Therefore my remarks will focus on the antitrust violations
of the current Fortress Hub system created and maintained by
the major airlines. That the proposed or potential mergers
are an unacceptable expansion of monopolization is a given.
But this Committee, the entire Congress, and the
Administration need to develop and implement specific
concrete and comprehensive solutions to the existing Fortress
Hub monopoly problem.
Thankfully, we do not address this problem in a vacuum. The
Suburban O'Hare Commission--an intergovernmental body of
local governments adjacent to O'Hare airport--has recently
issued a comprehensive report on the national Fortress Hub
problem entitled If You Build It, We Won't Come: The
Collective Refusal Of The Major Airlines To Compete In The
Chicago Air Travel Market. The Suburban O'Hare Commission
report contains a detailed analysis and description of the
monopoly problem presented by the Fortress Hub system and I
won't repeat all those details here. But I would like to
highlight several issues from the report and discuss
recommended solutions to the Fortress Hub problem both
nationally, and in Chicago.
1. Northwest owns Minneapolis and Detroit; Delta owns
Atlanta and Cincinnati; American and United own Chicago; US
Air owns Pittsburgh.
Ever since the passage of deregulation legislation in 1978,
the major airlines have consolidated their economic power
into a series of geographically distinct ``Fortress Hubs''.
Thus everyone knows that Northwest Airlines dominates air
travel to and from Minneapolis and Detroit; Delta dominates
air travel to and from Atlanta and Cincinnati; United and
American dominate air travel to and from Chicago; and US Air
dominates air travel to and from Pittsburgh.
2. These Fortress Hub markets have economically attractive
business travel markets that should--in normal
circumstances--attract competition to service those markets.
Virtually all of the major Fortress Hub markets are located
in thriving urban business centers. This means that in all
major Fortress Hub markets there is a large pool of business
travelers who would like to travel from the Fortress Hub to
other destinations.
One would assume that this pool of business travelers would
be an attractive market for major airlines to compete with
one another for this traffic. One would assume therefore that
United would--under normal circumstances--wish to compete
with Delta for the business traveler based in Atlanta.
Similarly, Delta would--under normal circumstances--wish to
compete with United and American for the business travel
market based in Chicago or with Northwest for the business
market in Minneapolis or Detroit.
But we do not have normal circumstances here. We do not see
Northwest coming before Congress complaining about their
inability to compete with Delta in Atlanta for the lucrative
business travel market. We do not see Delta coming before
Congress complaining about their inability to compete with
Northwest in Detroit for the lucrative business travel market
there or their inability to compete with United and American
in Chicago for the business travel there. Instead we have a
collective decision by the major airlines--the so-called
``Big Seven''--not to compete in each other's major hub
markets.
3. This decision by the Big Seven Not To Compete Appears to
Be a ``Per Se'' Violation of federal Anti-trust laws.
Given this obvious collective decision by the Big Seven to
stay out of each other's Fortress Hub markets and this
collective decision not to compete for lucrative business
travel in those markets, the obvious question is: Do these
geographic allocation of

[[Page H5176]]

Fortress Hub markets by the major airlines constitute ``per
se'' violations of federal antitrust laws. As set forth in
the Suburban O'Hare Commission report, a multitude of Supreme
Court decisions uniformly condemn horizontal geographic
market allocations--such as is present in the geographic
allocation of Fortress Hub markets--as ``per se'' violations
of the Sherman antitrust law.
4. The Fortress Hub Monopoly System Costs Travelers--
especially business travelers--billions of dollars per year
in excess fares.
The concentration of market power in the hands of one or
two airlines in a single geographic market inevitably leads
to the temptation by the dominant carriers to raise prices to
higher levels than would be the case if there was significant
competition in that market. The General Accounting Office
(GAO) has warned us for years that concentration of market
power in one or two airlines has led and will lead to
significantly higher prices than would otherwise be the case
with aggressive competition.
The State of Illinois has produced two studies which
suggest that the monopoly premium paid by travelers at
Fortress O'Hare alone is on the order of several hundred
million dollars per year--monopoly overcharges taken from the
traveler by United and American because of the lack of
significant competition in the O'Hare market. Extended
nationally, these monopoly overcharges are likely to exceed
several billion dollars per year being paid by the nation's
air travelers. The segment of the travelling public that
bears the brunt of these monopoly overcharges is the business
traveler. The anecdotal evidence is overwhelming that the
time-sensitive business traveler is being charged exorbitant
prices for business travel. It is clear that the Big Seven
cartel is maintaining the Fortress Hub system--and reaping
huge monopoly induced revenues--on the backs of the business
traveler.
5. The Big Seven's refusal to Compete In Chicago--If You
Build It We Won't Come.
Metropolitan Chicago makes a good case study of the
collective refusal of the other members of the Big Seven to
compete with United's and American's dominance of the Chicago
air travel market. As discussed in the Suburban O'Hare
Commission report, the evidence is clear that United and
American--in concert with their fellow members of the Air
Transport Association (ATA)--have engaged in a collusive
effort to stop construction of major new capacity in
metropolitan Chicago.
Here we have explicit evidence of the other major airlines
telling the State of Illinois that--even if a new airport is
constructed in metro Chicago--they will not use that airport
to compete head-to-head with United and American. When read
carefully, the ATA sponsored letter necessarily implies even
more. It suggests that these other major airlines simply do
not wish to compete with United and American in the Chicago
market on any terms or at any location.
Nowhere do these major airlines (e.g. Delta, Northwest,
Continental) offer to compete with United and American in the
metro Chicago area if favorable terms are made available to
them at the new airport (e.g. low landing fees; high speed
rail access to central Chicago, etc.). Nor do they
alternatively demand major hub-and-spoke capacity be made
available to them at O'Hare so that they can compete head-to-
head at O'Hare. Instead, they simply declare their refusal to
use the new airport and by necessary conclusion, declare
their refusal to compete in the metro Chicago market.
6. The Currently Proposed O'Hare Expansion Will Only Make
the Monopoly Problem Worse.
United and American are currently working with the City of
Chicago on a massive expansion of O'Hare called the ``World
Gateway'' program. This proposal calls for spending several
billion dollars in federal taxpayer money to fund the
expansion of United and American's hub-and-spoke monopoly at
O'Hare. Nowhere in the design of the World Gateway project is
there any attempt to include or encourage new hub-and-spoke
competition from another major airline. Indeed, the entire
terminal design is premised on continued growth of United and
American's hub-and-spoke systems to the exclusion of any new
hub-and-spoke competitor.
7. The Campaign to Maintain the Fortress Hub System--and to
Defeat the Development of New Capacity for New Competition--
has Other Serious Consequences.
As discussed above the principal economic victims of the
Fortress Hub monopoly system is the business traveler and our
national economy. American businesses are paying a penalty of
billions of dollars per year in monopoly overcharges to the
major airlines Fortress Hub system. Further, the
prohibitively high prices of business travel created and
maintained by this Fortress Hub system are actually stifling
business travel for those entrepreneurial businesses who
cannot afford those prices.
But the business traveler is not the only victim of this
Fortress Hub system. As shown by the Suburban O'Hare
Commission report and from my own experience, the major
airlines attempts to defeat the construction of new
competitive capacity in the South Suburban Chicago Airport
illustrates the widespread adverse consequences of this
illegal conduct.
By seeking to expand United and American's dominance of the
regional Chicago market through a major expansion of O'Hare--
while refusing to compete in metropolitan Chicago--the major
airlines (led by United and American) have created severe
environmental and economic problems and distortions
throughout the Chicago metro region. My point is that the
major airlines' passion for protection and expansion of the
Fortress Hub monopoly system has consequences far beyond the
business traveler. These include:
Severe environmental impacts on communities around the
Fortress Hub airport. The O'Hare area communities will be
subjected to more noise, more air pollution, and more safety
hazards because United and American want the expansion to
take place under their control at O'Hare--where by design
they are keeping out new hub-and- spoke competition--rather
than at a new regional airport where a major new
competitor could enter the region.
Serious economic decline in the communities in my district.
By seeking to force traffic growth into their already
overloaded Fortress Hub at O'Hare, United and American (along
with their colleagues at the ATA) are causing serious
economic injury to the communities in my district. As you
know, Chairman Hyde and I each represent a part of Chicago
and its suburbs. What you might not know is that the hub of
business activity in Chicago is no longer downtown; it is
O'Hare Airport. There are roughly equal numbers of people
living in the south suburbs, which I represent, and the
northwest suburbs, which Chairman Hyde represents. However,
during the past ten years, eighty percent of the new jobs
created in the Chicago region were in Mr. Hyde's district
while my district lost jobs.
8. The Federal Government Has Assisted In the Growth and
Expansion of the Fortress Hub Monopoly System.
It is obvious that the Department of Justice has broad law
enforcement powers to correct many of the abuses of the
Fortress Hub system. But there is another aspect of federal
power that has actually been used to nurture and expand the
Fortress Hub monopoly problem--the current federal programs
for financial assistance to airports.
The federal government--through either the Airport
Improvement Program (AIP) or the Passenger Facility Charge
Program (PFC)--awards or authorizes the expenditure of
billions of dollars for airport development. Yet it is clear
that little effort has been made by the Department of
Transportation to ensure that these billions of federal
taxpayer dollars are used to enhance competition and to deter
monopoly. Indeed, there is strong evidence that the
Department of Transportation has acted in collusion with the
Fortress Hub major airlines to expand the Fortress Hub
monopolies and to discourage new competition.
This neglect of the antitrust implications of federal
airport funding policy is vividly illustrated in the
Administration's bizarre use of federal funding power in
Chicago:
First, the Administration has repeatedly denied planning
and development funds for a new regional airport which could
support major new competition for United and American. The
Administration has done so on the bizarre extra-legal claim
that before a new airport can proceed, there must be
``regional consensus''--a code phrase for Mayor Daley's
approval. No such requirement exists in federal law.
Second, the Administration is proceeding forward with
Chicago's (and United and American's) design for a so-called
``World Gateway'' program at O'Hare which is designed to
expand and solidify the current hub-and-spoke dominance of
United and American in the region. As currently proposed, the
DOT is being asked to approve or authorize billions of
federal taxpayer dollars to build a Fortress Hub expansion
designed by United and American to keep out new hub-and-spoke
competition.
Both of these actions by DOT are interrelated. Starving the
new regional airport will ensure that no significant new
competition comes into the region while funneling billions in
taxpayer dollars into United's and American's expanded
Fortress O'Hare will only increase the monopoly problem in
Chicago.
9. Mega-Mergers Will Only Make The Problem Worse.
My discussion above makes it clear that we already--
independent of the proposed and potential mega-mergers--have
enormous problems with anti-trust violations in the airline
industry's Fortress Hub system, problems that cost the
traveling public billions of dollars, in overcharges each
year. These current problems stem from a concentration of
market power in the hands of a few. It is obvious that the
mega-mergers will only make an already terrible situation
even worse.

Conclusion and Recommendations

Based on my own analysis and that of the Suburban O'Hare
Commission, I conclude that the evidence is overwhelming that
the major airlines have developed a Fortress Hub system that
enables individual airlines to dominate geographic markets
and charge exorbitant monopoly supported air fares. I further
conclude that as part of their program to maintain and expand
this illegal system, the major airlines have acted in concert
not to compete in each other's Fortress Hub markets for
lucrative business travel markets--with the result that
business travelers are overcharged billions of dollars per
year. Finally, I conclude that this Fortress Hub system
constitutes a per se violation of federal antitrust laws.
Given these conclusions,

[[Page H5177]]

I make the following recommendations to this Committee:
It is obvious that the proposed and potential ``mega-
mergers'' should be stopped.
I respectfully ask that the Committee join with me in
asking the Department of Justice to initiate an investigation
into the collective refusal of the Big Seven airlines to
compete against each other in each other's Fortress Hub
markets.
I respectfully ask that the Committee join with me in
asking the Department of Justice to initiate a civil action
in federal court to break up the Fortress Hub geographic
market allocation by the major airlines and to prohibit the
collective refusal of the major airlines to compete in each
other's Fortress Hub markets.
I respectfully ask that the Committee join with me in
asking the state Attorneys General to bring civil damage
actions to recover treble damages for the billions of dollars
per year in overcharges imposed on travelers as a result of
Fortress Hub system.
I respectfully ask this Committee to join with me in a
request to the Department of Justice and the Department of
Transportation that no further federal funds (either Airport
Improvement Program funds or Passenger Facilities Charges) be
authorized or approved at O'Hare until there have been full
public hearings and public consideration of the antitrust
implications of the proposed alterations to O'Hare.
I respectfully ask that the Committee join with me in
seeking major reform of the federal aid process to airports
to insure that the federal funds are used to promote
competitions and to discourage maintenance and growth of
Fortress Hub monopoly power.
I respectfully ask that the Committee join with me in the
following recommendation to the Department of Transportation:
Until completion of construction of a new Chicago regional
airport, the existing capacity of O'Hare should be
reallocated from its current dominance by United and American
into a shared capacity allocation program that reserves a
significant share of OHare's capacity (e.g. 40 percent) for
new 1 competitive entrants. And by new competitive entrants,
I do not mean affiliates of United and American.
____

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 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 Tribune 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] [2]
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. 2107 converts the concept of dual
sovereignty into tri-sovereignty, by going beyond states'
rights to city rights. It gives Mayor Daley (and the other
local officials in charge of the 68 largest airports in the
country) a greater say over national aviation policy than the
federal government or the fifty governors.
Indeed, H.R. 2107 sets federalism on its head. It makes
about as much sense as putting the local police department in
charge of national defense.
Such legislation won't improve aviation services. In fact,
it increases the likelihood for a constitutional challenge
that will further prolong this crisis.
So, from a practical standpoint, I urge the subcommittee to
reject this measure, to reject cramming more planes into one
of the nation's most overcrowded airport, to reject turning
O'Hare into the world's largest construction site for the
next 20 years, and to reject sticking the taxpayers with an
outrageous bill.
I strongly urge the committee to reject this unprecedented,
unwise and unconstitutional attack against our fifty states
and our Founding Fathers. Thank you.
____

House of Representatives,

Washington, DC.

Statement of U.S. Representative Jesse L. Jackson, Jr. Before the U.S.
Senate Commerce Committee Thursday, March 21, 2002.

[[Page H5178]]

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 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.
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 you to reject this unprecedented, unwise, and
unconstitutional bill. Instead, I urge you to treat O'Hare
and Peotone on equal terms and to avoid stacking the deck for
or against either project. Finally, I urge you to consider
substantive improvements to this bill that would allow--not
impair--Peotone to proceed on its own merits, free of
political interference.
If you do, I am confident that Peotone will prove to be the
cheaper, quicker, safer, cleaner, more practical and more
permanent solution to the region's and nation's aviation
capacity needs. Thank you.
____

House of Representatives,

Washington, DC., Wednesday, February 6, 2002.

Federal Study Confirms Airport Deal Shortchanges Peotone

An analysis released today by the independent, non-partisan
research arm of Congress confirmed what Peotone proponents
have said all along: The Ryan-Daley airport agreement puts
O'Hare on the fast track and just pays lip service to
Peotone.
An analysis released today by the Congressional Research
Service concludes that the proposed National Aviation
Capacity Expansion Act puts the two projects on separate and
unequal tracks.
The CRS analysis states that the Federal Government ``shall
construct the runway redesign plan'' at O'Hare but would
merely ``review'' and give ``consideration'' to the Peotone
Airport project.
In reaction to the release of today's report, Congressman
Jackson reiterated his opposition to the measure. ``This
study unmasks the bare truth about the agreement between the
Mayor and the Governor. For those claiming that the deal is
good for the Third Airport, it's not. The masquerade ball is
over,'' Jackson said.
``Peotone has been stuck in the paralysis of analysis for
15 years. We don't need any more reviews. We need a Third
Airport, `` Jackson said. ``Peotone can be built faster,
cheaper, safer, and cleaner than expanding O'Hare, and
presents a more secure and more permanent solution to
Illinois' aviation crisis. This is shortsighted legislation
and a bad deal for the public.''
The CRS report states that the Lipinski-Durbin bill
``specifically states that the (FAA) Administrator `shall
construct' the runway redesign plan; however, there is no
parallel language regarding the construction of the south
suburban airport.''
CRS concludes that the bill ``provides for the
Administrator's review of the Peotone Airport project (and)
provides for the expansion of O'Hare. The provisions appear
to operate independently of each other and are not drafted in
parallel language, and provide different directions to the
Administrator.''
____

Congressional Research Service,

February 6, 2002.

MEMORANDUM

Subject Examination of Certain Provisions of H.R. 3479:
National Aviation Capacity Expansion Act.
To: Hon. Jesse L. Jackson, Jr., Attention: George Seymour

From: Douglas Reid Weimer, Legislative Attorney, American Law
Division.

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 to 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 is to 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 in 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 1, 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.

[[Page H5179]]

(3) The Administrator is authorized and directed to acquire
in the name of the United States all land, easements, rights-
of-way, rights of entry, or other interests in land or
property necessary for the runway redesign plan under this
section, subject to such terms and conditions as the
Administrator deems necessary to protect the interests of the
United States.
(4) Chicago shall be deemed the owner and operator of each
element of the runway reconfiguration plan under section
40117 and chapter 471 of title 49, United States Code,
notwithstanding any other provision of this section or any of
the provisions in such title referred to in this subsection.
The Administrator is directed to construct the O'Hare
runway plan as a Federal project if certain conditions are
met: (1) construction of the runway design plan has not begun
and is not expected to begin by December 1, 2004; (2) Chicago
agrees to the runway plan as a Federal project without cost
to the United States, with certain exceptions; (3) Chicago
enters into an agreement to protect Federal Government
interests concerning construction, operation, and maintenance
of the runway project; (4) the agreement provides that
Chicago take over the ownership and operation control of each
element of the runway design plan upon its completion; (5)
Chicago provides, without cost, the land, easements, right-
of-way, rights of entry, and other interests in land/property
as are required to allow the construction of the runway plan
as a Federal project and to protect the interests of the
Federal Government in its construction, operation,
maintenance, and use; and (6) the Administrator is satisfied
that the redesign plan costs will be paid from the usual
sources used for airport development projects of similar kind
and scope.
Paragraph 2 provides that the Administrator ``may'' make an
agreement with Chicago, whereby Chicago will provide the work
described above in paragraph (1) for the benefit of the
Administrator. It should be noted that the use of the word
``may'' would appear to make this language optional, and
would not necessarily require the Administrator to enter into
such agreement with Chicago.
Paragraph 3 authorizes and directs the Administrator to
acquire in the name of the Federal Government those property
interests needed for the redesign plan, subject to the terms
and conditions that the Administrator feels are necessary to
protect the interests of the United States.
Paragraph 4 provides that Chicago will be deemed to be the
owner and operator of each element of the runway
reconfiguration plan, notwithstanding any other provision of
this section.
Discussion has focused on the different legislative
language used in subsection (e) and (f). Subsection (f)
specifically states that the Administrator ``shall
construct'' the runway redesign plan; however, there is no
parallel language regarding the construction of the south
suburban airport in subsection (e). The provisions of the
subsections appear to be independent of each other and
provide very different directions to the Administrator.
Hence, it may be interpreted that subsection (f) would
authorize runway construction (if certain conditions are
met), and subsection (e) is concerned primarily with the
review and the consideration of an airport construction
plan.
It is possible that the Administrator's actions concerning
the implementation of this legislation, if enacted, may be
subject to judicial review. Judicial review of agency
activity or inactivity provides control over administrative
behavior. Judicial review of agency action/inaction may
provide appropriate relief for a party who is injured by the
agency's action/inaction. The Administrative Procedure Act
(``APA'') provides general guidelines for determining the
proper court in which to seek relief. Some statutes provide
specific review proceedings for agency actions. Subsection
(h) of the bill provides for judicial review of an order
issued by the Administrator. The bill provides that the bill
may be reviewed pursuant to the provisions contained at 49
U.S.C. Sec. 46110.
If the Administrator does not issue an order and judicial
review is not possible under this provision, then it is
possible that ``nonstatutory review'' may occur. When
Congress has not created a special statutory procedure for
judicial review, an injured party may seek ``nonstatutory
review.'' This review is based upon some statutory grant of
subject matter jurisdiction. Therefore, a party who wants to
invoke nonstatutory review will look to the general grants of
original jurisdiction that apply to the federal courts. It is
possible that an available basis for jurisdiction in this
case--if the Administrator does not carry out his/her
Congressional mandate--may be under the general federal
question jurisdiction statute which authorizes the federal
district courts to entertain any case ``arising under'' the
Constitution or the laws of the United States. An action for
relief under this provision is usually the most direct way to
obtain nonstatutory review of an agency action. Hence, it is
possible that an action could be brought under this statute
to compel the Administrator to comply with the provisions
contained in the bill.

conclusion

July 22, 2002.
Hon. Maxine Waters,
House of Representatives, Washington, DC.
Dear Representative Waters, I would like to personally
thank you for opposing H.R. 3479, The National Capacity
Expansion Act. This is an extremely controversial bill, and
it was totally inappropriate for it to be included on the
suspension calendar.
There is no dispute that there is an air capacity crisis at
the Chicago O'Hare International Airport. There is a dispute
over how to resolve it. We believe that building Peotone is a
quicker, cheaper, safer, cleaner, more permanent, and more
just way to resolve the aviation capacity crisis,
As you know, this bill also sets a dangerous precedent by
allowing the federal government to preempt an Illinois state
law that requires state legislative approval of airport
construction and expansion. Will your state legislature be
next to lose its power to decide local airport matters?
With your assistance, the misguided efforts of H.R. 3479
were defeated. I appreciate your vote and urge your continued
opposition to H.R. 3479!
Sincerely,
Jesse L. Jackson, Jr.
Member of Congress.
____

House of Representatives,

Washington, DC., December 13, 2001.
Hon. Edward M. Kennedy,
United States Senate, Washington, DC.
Dear Senator Kennedy: In the next few days and months, you
may be asked to cosponsor S. 1786, a bill to massively expand
O'Hare International Airport in Chicago. I strongly oppose
this legislation, which in my view, is severely flawed,
deeply divisive, constitutionally suspect, environmentally
unsound, unnecessarily wasteful and dangerous.
For the past six years, I have been working on an
alternative proposal to increase aviation capacity in the
Chicago area--building a third regional airport. Rather than
ripping up and reconstructing runways at O'Hare, a new
airport near Peotone, Illinois provides a cheaper, quicker,
and cleaner solution.
Able to be built in one-third the time and at one-third the
cost of the proposed O'Hare expansion, a third airport would
be a more secure and more permanent solution to the region's
aviation crisis. It also would create 236,000 jobs, generate
$10 Billion in new economic activity, revitalize depressed
communities, foster balanced economic growth, enhance airline
competition, and drive down ticket prices. Simply put, a new
airport makes good dollars and good sense for the City of
Chicago, the State of Illinois and the entire nation.
Thus, I ask that you oppose S. 1786. However, if you are
considering supporting the bill, I respectfully request that
you allow me an opportunity to share my views with you. I can
be reached at 225-0773. Thank you in advance for your
consideration and I look forward to speaking with you.
Sincerely,
Jesse L. Jackson, Jr.,
Member of Congress.
____

House of Representatives,

Washington, DC., July 24, 2001.
Hon. Don Young,
Chairman, Transportation and Infrastructure Committee,
Washington, DC.
Dear Congressman Young: I am writing to you about the grave
concerns I have with H.R. 2107, The End Gridlock at Our
Nation's Critical Airports Act of 2001. I share the concerns
of Congressmen Henry Hyde, Jerry Weller and Philip Crane, who
have sent a virtually identical letter to you under separate
cover. I agree that in H.R. 2107--the attempt to rebuild and
expand O'Hare Airport--Congress is inappropriately violating
the Tenth Amendment.
In other contexts--specifically with regard to certain
human rights--I believe that the Tenth Amendment serves to
place limitations on the federal government with which I
disagree. Indeed, in the area of human rights, I believe new
amendments must be added to the Constitution to overcome the
limitations of the Tenth Amendment. However, building
airports is not a human right. Therefore, in the present
context, I agree that building airports is appropriately
within the purview of the states.
I believe attempts by Congress to strip the authority of
Governor Ryan and the Illinois Legislature over the
delegation and authorization to Chicago of state power to
build airports--along with the authority of governors and
state legislatures in a host of other states such as
Massachusetts (Logan), New York (LaGuardia and JFK), New
Jersey (Newark) California (San Francisco airport), and the
State of Washington (Seattle)--raise serious constitutional
questions.

[[Page H5180]]

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 ail
governmental powers, but only discrete, enumerated ones, Art.
1, 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 healthy balance of power
between the States and the Federal Government will reduce the
risk of tyranny and abuse from either front.
ld 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 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 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.
____

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 West Wing, 1st Floor,
The White House,
Washington, DC.
Dear Andy: A matter of great importance to us is the need
for safe airport capacity expansion in the metro Chicago
region. At your earliest convenience, we would like to
schedule a meeting with you and Secretary Mineta to discuss
the situation. Enclosed is a detailed memorandum summarizing
our views. We are convinced that we must build a new regional
airport now and, for the same reasons, we believe that
construction of one or more new runways at O'Hare would be
harmful to the public health, economy and environment of the
region.
As set forth in that memorandum:
Most responsible observers agree that the Chicago region
needs major new runway capacity now.
The question is where to build that new runway capacity--
(1) at a new regional airport, (2) at O'Hare, (3) at Midway,
or (4) a combination of all of the above. An assessment of
these alternatives reaches the following conclusions:
1. The new runways can be built faster at a new airport as
opposed to O'Hare or Midway.
2. More new runway capacity can be built at a new site than
at O'Hare or Midway.
3. The new runways can be built at far less cost at a new
airport than at O'Hare or Midway.
4. Construction of the new capacity at a new airport will
have far less impact on the environment and public health
than would expansion of either Midway or O'Hare.
5. Construction of the new capacity at a new airport offers
the best opportunity to bring major new competition into the
region.
6. The selected alternative cannot be expansion at O'Hare
and construction of a new airport. New runways at O'Hare
would doom the economic feasibility of the new airport,
guarantee its characterization as a ``white elephant'' and
insure the expansion of the monopoly dominance of United and
American Airlines in the Chicago market.
The memorandum contains a series of related questions and a
detailed list of suggestions that would ensure the rapid
development of major new runway capacity in the Chicago
region, open the region to major new competition, and
accomplish these objectives in a low-cost, environmentally
sound manner.
Again, we would appreciate the opportunity to discuss these
matters with you and Secretary Mineta at your earliest
convenience.
Very truly yours,
Henry Hyde.
Jesse Jackson, Jr.
____

[[Page H5181]]

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
To: White House Chief of Staff Andrew Card
From: Congressman Henry Hyde, Congressman Jesse Jackson, Jr.
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 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.