[Congressional Record (Bound Edition), Volume 148 (2002), Part 10]
[House]
[Pages 13949-14029]
[From the U.S. 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 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,

[[Page 13950]]

     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
     ILCS5/) to prevent, or have the effect of preventing--
       (1) further consideration by the Federal Aviation 
     Administration of an O'Hare airport layout plan directly 
     related to the agreement reached by the State and the city on 
     December 5, 2001, with respect to O'Hare;
       (2) construction of projects approved by the Administration 
     in such O'Hare airport layout plan; or
       (3) application by the city of Chicago for Federal airport 
     improvement program funding for projects approved by the 
     Administration and shown on such O'Hare airport layout plan.
       (b) Applications for Federal Funding.--Notwithstanding any 
     other provision of law, the city of Chicago is authorized to 
     submit directly to the Federal Aviation Administration 
     without the approval of the State of Illinois, applications 
     for Federal airport improvement program funding for planning 
     and construction of a project shown on an O'Hare airport 
     layout plan directly related to the agreement reached on 
     December 5, 2001, and to accept, receive, and disburse such 
     funds without the approval of the State of Illinois.
       (c) Limitation.--If the Federal Aviation Administration 
     determines that an O'Hare airport layout plan directly 
     related to the agreement reached on December 5, 2001, will 
     not be approved by the Administration, subsections (a) and 
     (b) of this section shall expire and be of no further effect 
     on the date of such determination.
       (d) Western Public Roadway Access.--As provided in the 
     December 5, 2001, agreement referred to in subsection (a), 
     the Administrator of the Federal Aviation Administration 
     shall not consider an airport layout plan submitted by the 
     city of Chicago that includes the runway redesign plan, 
     unless the airport layout plan includes public roadway access 
     through the existing western boundary of O'Hare to passenger 
     terminal and parking facilities located inside the boundary 
     of O'Hare and reasonably accessible to such western access. 
     Approval of western public roadway access shall be subject to 
     the condition that the cost of construction be paid for from 
     airport revenues consistent with Administration revenue use 
     requirements.
       (e) Noise Mitigation.--As provided in the December 5, 2001, 
     agreement referred to in subsection (a), the following apply:
       (1) Approval by the Administrator of an airport layout plan 
     that includes the runway redesign plan shall require the city 
     of Chicago to offer acoustical treatment of all single-family 
     houses and schools located within the 65 DNL noise contour 
     for each construction phase of the runway redesign plan, 
     subject to Administration guidelines and specifications of 
     general applicability. The Administrator may not approve the 
     runway redesign plan unless the city provides the 
     Administrator with information sufficient to demonstrate that 
     the acoustical treatment required by this paragraph is 
     feasible.
       (2)(A) Approval by the Administrator of an airport layout 
     plan that includes the runway redesign plan shall be subject 
     to the condition that noise impact of aircraft operations at 
     O'Hare in the calendar year immediately following the year in 
     which the first new runway is first used and in each calendar 
     year thereafter will be less than the noise impact in 
     calendar year 2000.
       (B) The Administrator shall make the determination 
     described in subparagraph (A)--
       (i) using, to the extent practicable, the procedures 
     specified in part 150 of title 14, Code of Federal 
     Regulations;
       (ii) using the same method for calendar year 2000 and for 
     each forecast year; and
       (iii) by determining noise impact solely in terms of the 
     aggregate number of square miles and the aggregate number of 
     single-family houses and schools exposed to 65 or greater 
     decibels using the DNL metric, including only single-family 
     houses and schools in existence on the last day of calendar 
     year 2000. The Administrator shall make such determination 
     based on information provided by the city of Chicago, which 
     shall be independently verified by the Administrator.
       (C) The conditions described in this subsection shall be 
     enforceable exclusively through the submission and approval 
     of a noise compatibility plan under part 150 of title 14, 
     Code of Federal Regulations. The noise compatibility plan 
     submitted by the city of Chicago shall provide for compliance 
     with this subsection. The Administrator shall approve 
     measures sufficient for compliance with this subsection in 
     accordance with procedures under such part 150. The United 
     States shall have no financial responsibility or liability if 
     operations at O'Hare in any year do not satisfy the 
     conditions in this subsection.
       (f) Report to Congress.--If the runway redesign plan 
     described in this section has not received all Federal, 
     State, and local permits and approvals necessary to begin 
     construction by December 31, 2004, the Administrator shall 
     submit a status report to the Committee on Commerce, Science, 
     and Transportation of the Senate and the Committee on 
     Transportation and Infrastructure of the House of 
     Representatives within 120 days of such date identifying each 
     permit and approval necessary for the project and the status 
     of each such action.
       (g) Judicial Review.-- An order issued by the 
     Administrator, in whole or in part, under this section shall 
     be deemed to be an order issued under part A of subtitle VII 
     of title 49, United States Code, and shall be reviewed in 
     accordance with the procedure in section 46110 of such title.
       (h) Definition.--In this section, the terms ``airport 
     layout plan directly related to the agreement reached on 
     December 5, 2001'' and ``such airport layout plan'' mean a 
     plan that shows--
       (1) 6 parallel runways at O'Hare oriented in the east-west 
     direction with the capability for 4 simultaneous independent 
     visual aircraft arrivals in both directions, and all 
     associated taxiways, navigational facilities, and other 
     related facilities; and
       (2) closure of existing runways 14L-32R, 14R-32L and 18-36 
     at O'Hare.

     SEC. 104. CLEAN AIR ACT.

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

     SEC. 105. MERRILL C. MEIGS FIELD.

       The State of Illinois and the city of Chicago, Illinois, 
     have agreed to the following:
       (1) Until January 1, 2026, the Administrator of the Federal 
     Aviation Administration shall withhold all Federal airport 
     grant funds respecting O'Hare International Airport, other 
     than grants involving national security and safety, unless 
     the Administrator is reasonably satisfied that the following 
     conditions have been met:
       (A) Merrill C. Meigs Field in Chicago either is being 
     operated by the city of Chicago as an airport or has been 
     closed by the Administration for reasons beyond the city's 
     control.
       (B) The city of Chicago is providing, at its own expense, 
     all off-airport roads and other access, services, equipment, 
     and other personal property that the city provided in 
     connection with the operation of Meigs Field on and prior to 
     December 1, 2001.
       (C) The city of Chicago is operating Meigs Field, at its 
     own expense, at all times as a public airport in good 
     condition and repair open to all users capable of utilizing 
     the airport and is maintaining the airport for such public 
     operations at least from 6:00 A.M. to 10:00 P.M. 7 days a 
     week whenever weather conditions permit.
       (D) The city of Chicago is providing or causing its agents 
     or independent contractors to provide all services (including 
     police and fire protection services) provided or offered at 
     Meigs Field on or immediately prior to December 1, 2001, 
     including tie-down, terminal, refueling, and repair services, 
     at rates that reflect actual costs of providing such goods 
     and services.
       (2) If Meigs Field is closed by the Administration for 
     reasons beyond the city of Chicago's control, the conditions 
     described in subparagraphs (B) through (D) of paragraph (1) 
     shall not apply.

[[Page 13951]]

       (3) After January 1, 2006, the Administrator shall not 
     withhold Federal airport grant funds to the extent the 
     Administrator determines that withholding of such funds would 
     create an unreasonable burden on interstate commerce.
       (4) The Administrator shall not enforce the conditions 
     listed in paragraph (1) if the State of Illinois enacts a law 
     on or after January 1, 2006, authorizing the closure of Meigs 
     Field.
       (5) Net operating losses resulting from operation of Meigs 
     Field, to the extent consistent with law, are expected to be 
     paid by the 2 air carriers at O'Hare International Airport 
     that paid the highest amount of airport fees and charges at 
     O'Hare International Airport for the preceding calendar year. 
     Notwithstanding any other provision of law, the city of 
     Chicago may use airport revenues generated at O'Hare 
     International Airport to fund the operation of Meigs Field.

     SEC. 106. APPLICATION WITH EXISTING LAW.

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

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

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

            TITLE II--AIRPORT STREAMLINING APPROVAL PROCESS

     SEC. 201. SHORT TITLE.

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

     SEC. 202. FINDINGS.

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

     SEC. 203. PROMOTION OF NEW RUNWAYS.

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

     SEC. 204. AIRPORT PROJECT STREAMLINING.

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

             ``SUBCHAPTER III--AIRPORT PROJECT STREAMLINING

     ``Sec. 47171. DOT as lead agency

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

     ``Sec. 47172. Categorical exclusions

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

     ``Sec. 47173. Access restrictions to ease construction

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

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

       ``(a) In General.--Notwithstanding section 47107(b), 
     section 47133, or any other provision of this title, the 
     Secretary of Transportation may allow an airport sponsor 
     carrying out an airport capacity enhancement project at a 
     congested airport to make payments, out of revenues generated 
     at the airport (including local taxes on aviation fuel), for 
     measures to mitigate the environmental impacts of the project 
     if the Secretary finds that--
       ``(1) the mitigation measures are included as part of, or 
     are consistent with, the preferred alternative for the 
     project in the documentation prepared pursuant to the 
     National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
     seq.);

[[Page 13952]]

       ``(2) the use of such revenues will provide a significant 
     incentive for, or remove an impediment to, approval of the 
     project by a State or local government; and
       ``(3) the cost of the mitigation measures is reasonable in 
     relation to the mitigation that will be achieved.
       ``(b) Mitigation of Aircraft Noise.--Mitigation measures 
     described in subsection (a) may include the insulation of 
     residential buildings and buildings used primarily for 
     educational or medical purposes to mitigate the effects of 
     aircraft noise and the improvement of such buildings as 
     required for the insulation of the buildings under local 
     building codes.

     ``Sec. 47175. Airport funding of FAA staff

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

     ``Sec. 47176. Authorization of appropriations

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

     ``Sec. 47177. Judicial review

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

     ``Sec. 47178. Definitions

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

             ``SUBCHAPTER III--AIRPORT PROJECT STREAMLINING

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

     SEC. 205. GOVERNOR'S CERTIFICATE.

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

     SEC. 206. CONSTRUCTION OF CERTAIN AIRPORT CAPACITY PROJECTS.

       Section 47504(c)(2) of title 49, United States Code, is 
     amended--
       (1) by striking ``and'' at the end of subparagraph (C);
       (2) by striking the period at the end of subparagraph (D) 
     and inserting ``; and''; and
       (3) by adding at the end the following:
       ``(E) to an airport operator of a congested airport (as 
     defined in section 47178) and a unit of local government 
     referred to in paragraph (1)(A) or (1)(B) of this subsection 
     to carry out a project to mitigate noise in the area 
     surrounding the airport if the project is included as a 
     commitment in a record of decision of the Federal Aviation 
     Administration for an airport capacity enhancement project 
     (as defined in section 47178) even if that airport has not 
     met the requirements of part 150 of title 14, Code of Federal 
     Regulations.''.

     SEC. 207. LIMITATIONS.

       Nothing in this Act, including any amendment made by this 
     Act, shall preempt or interfere with--
       (1) any practice of seeking public comment; and
       (2) any power, jurisdiction, or authority of a State agency 
     or an airport sponsor has with respect to carrying out an 
     airport capacity enhancement project.
  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
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

[[Page 13953]]

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 
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

[[Page 13954]]

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. 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 point out that Gary, 
Indiana's population is 85 percent African American, and for those 
African American citizens 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. 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

[[Page 13955]]

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. 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 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.

[[Page 13956]]

  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. 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. 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 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

[[Page 13957]]

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 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

[[Page 13958]]

     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 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

[[Page 13959]]

     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 where such power is not given 
     by state law. City of Tacoma, 307 P.2d at 576-78, rev'd on

[[Page 13960]]

     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. 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

[[Page 13961]]

Mr. Durbin where the Peotone language is given priority status. And so 
why the gentleman from Illinois (Mr. Lipinski) stands here, my good 
friend, 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

[[Page 13962]]

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 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

[[Page 13963]]

when has such potential ``sleaze'' become non-controversial for 
Congress.
  I don't consider the Federal Government running over any future 
Governor of Illinois, the Illinois General Assembly, the Illinois 
Aeronautics Law, and the 10th Amendment of the U.S. Constitution--to 
build an airport--non-controversial.
  Finally, we're already finding out how controversial this bill is as 
Judge Hollis Webster on July 9, 2002, stopped the City of Chicago from 
running rough-shod over their northwest suburban neighbors by illegally 
trying to buy up and tear down their homes and businesses to make room 
for O'Hare expansion. This is just one of many controversial lawsuits 
that have been and will be filed in the future if this bill passes and 
becomes law.
  How is tearing down and rebuilding O'Hare--which will be three times 
as expensive, take three times longer, be less protective of the 
environment, make the skys less safe, and be a less permanent solution 
than building a third airport--non-controversial? I say, solve the 
current air capacity crisis by building Peotone first, faster, cheaper, 
and safer, then evaluate what needs to be done with O'Hare.
  H.R. 3479 fall woefully short of providing an adequate, equitable 
solution.
  Please know that I do not oppose fixing the current air capacity 
crisis surrounding O'Hare. But I have many, many grave concerns about 
this specific expansion plan. Concerns about cost. About safety. About 
environmental impact. About federal precedence--and I associate myself 
completely with the remarks of my good friend, Mr. Hyde.
  Although I oppose this bill for many reasons, I rise today to discuss 
an important element of this bill--constitutionality.
  The attempt to rebuild and expand O'Hare Airport--Congress is 
inappropriately violating the Tenth Amendment.
  In other contexts--specifically with regard to certain human rights--
I believe that the Tenth Amendment serves to place limitations on the 
federal government with which I disagree. Indeed, in the area of human 
right, I believe new amendments must be added to the Constitution to 
overcome the limitations of the Tenth Amendment. However, building 
airports is not a human right. Therefore, in the present context, I 
agree that building airports is appropriately within the purview of the 
states.
  I believe attempts by Congress to strip the authority of Governor 
Ryan and the Illinois Legislature over the delegation and authorization 
to Chicago of state power to build airports--along with the authority 
of governors and state legislatures in a host of other states such as 
Massachusetts (Logan), New York (LaGuardia and JFK), New Jersey 
(Newark), California (San Francisco airport), and the State of 
Washington (Seattle)--raise serious constitutional questions.
  Under the framework of federalism established by the federal 
constitution, Congress is without power to dictate to the states how 
the states delegate power--or limit the delegation of that power--to 
their political subdivisions. Unless and until Congress decides that 
the federal government should build airports, airports will continue to 
be built by states or their delegated agents (state political 
subdivisions or other agents of state power) as an exercise of state 
law and state power. Further compliance by the political subdivision of 
the oversight conditions imposed by the State legislature as a 
condition of delegating the state law authority to build airports is an 
essential element of that delegation of state power. If Congress strips 
away a key element of that state law delegation, it is highly unlikely 
that the political subdivision would continue to have the power to 
build airports under state law. The political subdivision's attempts to 
build runways would likely be ultra vires (without authority) under 
state law.
  Under the Tenth Amendment and the framework of federalism built into 
the Constitution, Congress cannot command the States to affirmatively 
undertake an activity. Nor can Congress intrude upon or dictate to the 
states, the prerogatives of the states as to how to allocate and 
exercise state power--either directly by the state or by delegation of 
state authority to its political subdivisions.
  As states by the United States Supreme Court:

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

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

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

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

       Municipal corporations are political subdivisions of the 
     State, created as convenient agencies for exercising such of 
     the governmental powers of the State as may be entrusted to 
     them. For the purpose of executing these powers properly and 
     efficiently they usually are given the power to acquire, 
     hold, and manage personal and real property. The number, 
     nature and duration of the powers conferred upon these 
     corporations and the territory over which they shall be 
     exercised rests in the absolute discretion of the State. . . 
     .  The State, therefore, at its pleasure may modify or 
     withdraw all such power, may take without compensation such 
     property, hold it itself, or vest it in other agencies, 
     expand or contract the territorial area, unite the whole or a 
     part of it with another municipality, repeal the charter and 
     destroy the corporation. All this may be done, conditionally 
     or unconditionally, with or without the consent of the 
     citizens, or even against their protest. In all these 
     respects the State is supreme, and its legislative body, 
     conforming its action to the state constitution, may do as it 
     will, unrestrained by any provision of the Constitution of 
     the United States.
  Commissioners of Highways, 653 F.2d at 297 Chicago has acknowledged 
that Illinois has delegated its power to build and operate airports to 
its political subdivisions by express statutory delegation. 65 ILCS 5/
11-102-1, 11-102-2 and 11-102-5. These state law delegations of the 
power to build airports and runways are subject to the Illinois 
Aeronautics Act requirements--including the requirement that the State 
approve any alterations of the airport--by their express terms. Any 
attempt by Congress to remove a condition or limitation

[[Page 13964]]

imposed by the Illinois Legislature on the terms of that state law 
delegation of authority would likely destroy the delegation of state 
authority to build airports by the Illinois Legislation to Chicago--
leaving Chicago without delegated state legislative authority to build 
runways and terminals at O'Hare or midway. The requirement that Chicago 
receive a state permit is an express condition of the grant of state 
authority and an attempt by Congress to remove that condition or 
limitation would mean that there was no continuing valid state 
delegation of authority to Chicago to build airports. Chicago's 
attempts to build new runways would be ultra vires under state law as 
being without the required state legislative authority.
  Clearly this bill sets dangerous precedence by stating that 
Congress--not the FAA, not Departments of Transportation, not aviation 
experts--but Congress shall plan and built airports.
  Further, it ignores the 10th Amendment to the U.S. Constitution. It 
guts and/or undermines state laws and environmental protections. And it 
sidesteps the checks-and-balances and the public hearing process.
  My focus today is the same as it's always been. Finding the best fix. 
And that best fix is the construction of a third Chicago airport near 
Peotone, Illinois. The plain truth is Peotone could be build in one-
third the time at one-third the cost. For taxpayers and travelers, it's 
a no-brainer.
  Unfortunately, this bill mandates expansion of O'Hare yet pays mere 
lip service to Peotone. It puts the projects on two separate and 
unequal tracks. That is my opinion. That is also the opinion of the 
Congressional Research Service, whose analysis I will provide for the 
record.
  What we don't need at this critical juncture is favoritism or 
interference from politicians and profit-oriented airlines to stack the 
deck against Peotone. What we don't need is a bill that increases the 
likelihood of a constitutional challenge that prolongs the debate and 
delays the fix.
  Thus, I urge members to reject this unprecedented, unwise, and 
unconstitutional bill.

         Ronald D. Rotunda, University of Illinois College of Law,
                                     Champaign, IL, March 1, 2002.
     Re Proposed federal legislation granting new powers to the 
         city of Chicago.
     Hon. Jesse L. Jackson, Jr.,
     House of Representatives, Washington, DC.
       Dear Congressman Jackson. As you know, I serve as the 
     Albert E. Jenner Professor of Law at the University of 
     Illinois Law School. I have authored a leading course book on 
     Constitutional Law. In addition, I co-author, along with my 
     colleague John Nowak, the widely-used multi-volume Treatise 
     on Constitutional Law, published by West Publishing Company. 
     In addition to my books, I have taught and researched in the 
     area of Constitutional Law since 1974.
       I have been asked to give my opinion on the 
     constitutionality of proposed federal legislation entitled 
     ``National Aviation Capacity Expansion Act,'' identical 
     versions of which have been introduced in both the Senate and 
     the House of Representatives by Senator Durbin and 
     Congressman Lipinski (S. 1786, HR 3479), hereafter the 
     ``Durbin-Lipinski legislation.''
       The Durbin-Lipinski legislation seeks to enact 
     Congressional approval of a proposal to construct a major 
     alteration of O'Hare Airport in Chicago. While this 
     legislation focuses on Chicago and the State of Illinois, the 
     issues raised by the legislation have serious constitutional 
     implications for all 50 States.
       There are two key components of the legislation that have 
     been the subject of my examination.
       First Section 3(a)(3) attempts to give the City of Chicago 
     (a political subdivision and instrumentality of the State of 
     Illinois) the legal power and authority to build a proposed 
     major alteration of O'Hare even though state law does not 
     authorize Chicago to build the alteration without first 
     receiving a permit from the State of Illinois. Chicago, as a 
     legal entity, is entirely a creation of state--not federal 
     law--and Chicago's authority to build airports is essentially 
     an exercise of state law power delegated to Chicago by the 
     Illinois General Assembly.
       The requirement that Chicago first obtain a state permit is 
     an integral and essential element of that delegation of state 
     power. The U.S. Constitution prohibits Congress (1) from 
     invading and commandeering the exercise of state power to 
     build airports, and (2) from changing the allocation of 
     state-created power between the State of Illinois and its 
     political subdivisions. The U.S. Constitution, in short, 
     prohibits Congress from essentially rewriting state law 
     dealing with the delegation of state power by eliminating the 
     conditions, restrictions, and prohibitions imposed by the 
     Illinois General Assembly on that delegation. These 
     constitutional restrictions on Congress' power--which 
     prohibit Congress from requiring states to change their state 
     laws governing cities--are often termed Tenth Amendment 
     restrictions.
       Similarly, the provisions of Section 3(f) of the proposed 
     Durbin-Lipinski legislation are necessarily conditioned upon 
     the existence of state law authority of Chicago to enter into 
     agreements for a third party (the FAA) to alter O'Hare 
     without first obtaining a permit from the State of Illinois. 
     But Chicago has no state law authority (under the delegation 
     of state power to build and alter airports) to enter into an 
     agreement to engage in a massive alteration of O'Hare without 
     a state permit. Congress cannot confer powers on a political 
     subdivision of a State where the State has expressly limited 
     its delegation of state power to build airports to require a 
     state permit. Congress has no constitutional authority to 
     create powers in an instrumentality of State law (Chicago) 
     when the very authority and power of Chicago to undertake the 
     actions proposed by Congress depends on compliance with--and 
     is contrary to--the mandates of the Illinois General 
     Assembly.
       For the reasons discussed below, it is my opinion that the 
     proposed legislation is unconstitutional.
     Summary of Analysis
       The following is a summary of my analysis:
       1. Under the governing United States Supreme Court 
     decisions of New York v. United States and Printz v. United 
     States, which are discussed below, the proposed legislation 
     is not supported by any enumerated power and thus violates 
     the limitations of the Tenth Amendment of the Constitution. 
     In these decisions, the Supreme Court held that legislation 
     passed by Congress, purportedly relying on its exercise of 
     the Commerce Power (nuclear waste legislation in New York and 
     gun control legislation in Printz) was unconstitutional 
     because the federal laws essentially commandeered state law 
     powers of the States as instrumentalities of federal policy.
       2. The same constitutional flaws afflict the proposed 
     Durbin-Lipinski legislation. Central to the Durbin-Lipinski 
     legislation are two provisions [sections 3(a)(3) and 3(f)] 
     that purport to empower or authorize Chicago (a political 
     instrumentality of the State of Illinois, and thus a city 
     that has no authority or even legal existence independent of 
     state law) to undertake actions for which Chicago has not 
     received any delegation of authority from the State of 
     Illinois and that, in fact, are directly prohibited by 
     Illinois law when the conditions and limitations of the State 
     delegation of authority have not been satisfied.
       3. Under Illinois law, Chicago (like any other political 
     subdivision of a State) has no authority to undertake any 
     activity (including constructing airports) without a grant of 
     state authority from the State of Illinois. Under Illinois 
     law, actions taken by political subdivisions of the State 
     (e.g., Chicago) without a grant of authority from the State, 
     or actions taken by political subdivision in violation of the 
     conditions, limitations or prohibitions imposed by the State 
     in delegating the state authority, are plainly ultra vires, 
     illegal, and unenforceable. The City of Chicago is a creature 
     of state law, not federal law.
       4. The power exercised by any state political subdivision 
     (e.g., the power to construct airports) is in reality a power 
     of the State--not inherent in the existence of the political 
     subdivision. For the political subdivision to have the legal 
     authority to exercise that state power, there must be a 
     delegation of that state power by the State to the political 
     subdivision. Further, it is axiomatic that any such 
     delegation of state power to a political subdivision must be 
     exercised in accordance with the conditions, limitations, and 
     prohibitions accompanying the State's delegation of that 
     power.
       5. In the case of airport construction, the Illinois 
     General Assembly has enacted a statute that delegated to 
     Chicago (and other municipalities) the state law power to 
     construct airports explicitly and specifically subject to 
     certain limits and conditions that the General Assembly 
     imposed. One basic requirement is that Chicago must first 
     comply with all of the requirements of the Illinois 
     Aeronautics Act--including the requirement that Chicago first 
     receive a permit (a certificate of approval) from the State 
     of Illinois. the Illinois General Assembly has expressly 
     provided that municipal construction or alteration of an 
     airport without such a state permit is unlawful and ultra 
     vires.
       6. Section 3(a)(3) of the Durbin-Lipinski legislation 
     expressly authorizes Chicago to proceed with the ``runway 
     redesign plan'' (a multi-billion dollar modification of 
     O'Hare) without regard to the clear delegation limitations 
     and prohibitions imposed by the Illinois General Assembly on 
     the state statutory delegation to Chicago of the state law 
     power to construct airports. Illinois law explicitly says 
     Chicago has no state law authority to build or alter airports 
     without first complying with the Illinois Aeronautics Act, 
     including the state permitting requirements of Sec. 47 of 
     that Act. Even though Chicago (a political creation and 
     instrumentality of the State of Illinois) has no power to 
     build or modify airports (a state law power) unless Chicago 
     obtains State approval, Section 3(a)(3) purports to infuse 
     Chicago (which has no legal existence independent of state 
     law) with a federal power to build airports and to disregard 
     Chicago's fundamental lack of power under state law to

[[Page 13965]]

     undertake such actions (absent compliance with state law). 
     Like New York v. United States and Printz v. United States 
     the proposed Durbin-Lipinski legislation involved Congress 
     attempting to use a legal instrumentality of a State (i.e., 
     the state power to build airports exercised through its 
     delegated state-created instrumentality, the city of Chicago) 
     as an instrument of federal power. As the Supreme Court held 
     in New York and Printz, the Tenth Amendment--and the 
     structure of ``dual sovereignty'' it represents under our 
     constitutional structure of federalism--prohibits the federal 
     government from using the Commerce power to conscript state 
     instrumentalities as its agents.
       7. Similar problems articulated in New York and Printz 
     fatally afflict Section 3(f) of the proposed Durbin-Lipinski 
     legislation. That section provides that, if (for whatever 
     reason) construction of the ``runway design plan'' is not 
     underway by July 1, 2004, then the FAA Administrator (a 
     federal agency) shall construct the ``runway redesign plan'' 
     as a ``Federal Project''. But, Section 3(f)(1) then provides 
     that this ``federal project'' must obtain several agreements 
     and undertakings from Chicago--agreements and undertakings 
     that are controlled by state law, which limits Chicago's 
     authority to enter into such agreements or accept such 
     undertakings. Chicago has no authority under the state law 
     (which confers upon Chicago the state power to construct 
     airports) to enter into agreements with any third party (be 
     it the United States or a private party) to make alterations 
     of an airport without the state permit required by state 
     statute. Thus, Chicago has no authority under state law to 
     enter into an agreement with the FAA Administrator to have 
     the runway redesign plan constructed by the Federal 
     government because Chicago has not received approval from the 
     State of Illinois under the Illinois Aeronautics Act--a 
     specific condition and prohibition of the delegation of state 
     power (to build airports) to Chicago by the Illinois General 
     Assembly. Just as Chicago (a creation and instrumentality of 
     the State of Illionis) has no power or authority under state 
     law (absent compliance with the Illinois Aeronautics Act) to 
     enter into an agreement for the FAA to construct the runway 
     redesign plan, Chicago also has no power or authority (absent 
     compliance with the Illinois Aeronautics Act) to enter into 
     the other agreements provided for in Sections 3(f)(1)(B) of 
     the Durbin-Lipinski legislation. Again, Section 3(f) is an 
     attempt to have Congress use the Commerce power to conscript 
     state instrumentalities as its agents. Instead of Congress 
     regulating interstate commerce directly (which both New York 
     v. United States and Printz allow), the Durbin-Lipinski 
     legislation seeks to regulate how the State regulates one of 
     its cities (which both New York v. United States and Printz 
     do not allow).
       8. The Durbin-Lipinski legislation is not a law of 
     ``general application''. There is a line of Supreme Court 
     decisions which allow Congress to use the Commerce Power to 
     impose obligations on the States when the obligations imposed 
     on the States are part of laws which are ``generally 
     applicable'' i.e., that impose obligations on the States and 
     on private parties alike. See e.g., Reno v. Condon, 528 U.S. 
     141 (2000) (Federal rule protecting privacy of drivers' 
     records upheld because they do not apply solely to the 
     State), South Carolina v. Baker, 485 U.S. 505 (1988); (state 
     bond interest not immune from nondiscriminatory federal 
     income tax); Garcia v. San Antonio Metropolitan Transit 
     Authority, 469 U.S. 528, (1985) (law of general 
     applicability, binding on States and private parties, 
     upheld). But these cases have no application where, as here 
     and in New York and Printz, the Congressional statute is not 
     one of general applicaiton but a specifically directed at the 
     States to use state law instrumentalities as tools to 
     implement federal policy. Here the Durbin-Lipinski 
     legislation is doubly unconstitutional, because it does not 
     apply to private parties or even to all States but only to 
     one State (Illinois) and its relationship to one city 
     (Chicago). The Durbin-Lipinski legislation proposes to use 
     Chicago (an instrumentality of state power whose authority to 
     construct airports is an exercise of state power expressly 
     limited and conditioned on the limits and prohibitions 
     imposed on that delegation by the Illinois legislature) as a 
     federal instrumentality to implement federal policy. Congress 
     is commandeering a state instrumentality of a single State 
     (Illinois) against the express statutory will of the Illinois 
     Legislature, which has refused to confer on Chicago (an 
     instrumentality of the State) the state law power and 
     authority to build airports unless Chicago first obtains a 
     permit from the State of Illinois. This is an 
     unconstitutional use of the Commerce Power under the holdings 
     New York and Printz and does not fall within the ``general 
     applicability'' line of cases such as Reno v. Condon, South 
     Carolina v. Baker, and Garcia.


                                analysis

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

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

     In addition, section 3(f) authorizes Chicago to enter into an 
     agreement with the federal government to construct the O'Hare 
     Airport expansion. This project is called a ``Federal 
     project,'' but Chicago must agree to construct the ``runway 
     redesign as a Federal Project,'' and Chicago provides the 
     necessary land, easements, etc., ``without cost to the United 
     States.''
       What this proposed legislation does is authorize the City 
     of Chicago to implement an airport expansion approved by the 
     Administrator of the Federal Aviation Administration. But, 
     under state law, Chicago cannot expand O'Hare because it does 
     not have the required state permit.
       There is no doubt that the O'Hare Airport is a means of 
     interstate commerce, and Congress may certainly impose 
     various rules and regulations on airports, including O'Hare. 
     Congress, for example, may decide to require airport security 
     and require that the security agents be federal employees. 
     Or, Congress could provide that it would build and takeover 
     the O'Hare Airport and construct expansion if the State of 
     Illinois refused to do so.
       Congress may also use its spending power to take land by 
     eminent domain and then construct or expand an airport, no 
     matter that the state law provides. The limits on the 
     spending clause are few.
       But, the proposed law does not take such alternatives. It 
     does not impose regulations on airports in general, nor does 
     it exercise the very broad federal spending power. Nor does 
     the proposed law authorize the federal government take over 
     ownership and control of O'Hare Airport. Instead, it seeks to 
     use an

[[Page 13966]]

     instrumentality of state power (i.e., the state law power to 
     build airports as delegated to a state instrumentality, the 
     city of Chicago) as an exercise of federal power.
       The proposed federal law is stating that it is creating a 
     federal authorization or empowerment to the City of Chicago 
     to do that which state law provides that Chicago may not do--
     expand O'Hare Airport without complying with state laws that 
     create the City of Chicago and delegate to it certain limited 
     powers that can be exercised only if within the limits of the 
     authorizing state legislation.
       New York v. United States
       The proposed federal law is very similar to the law that 
     the Supreme Court invalidated a decade ago in New York v. 
     United States. The law that New York invalidated singled out 
     states for special legislation and regulated that states' 
     regulation of interstate commerce. The proposed Durbin-
     Lipinski legislation singles out a State (Illinois) for 
     special legislation and regulates the State's regulation of 
     interstate commerce dealing with O'Hare Airport.
       While the law in this area has shifted a bit over the last 
     few decades, it is now clear that Congress can use the 
     Interstate Commerce Clause to impose various burdens on 
     States as long as those laws are ``generally applicable.'' 
     The federal law may not single out the State for special 
     burdens. For example, Congress may impose a minimum wage on 
     state employees in, or affecting, interstate commerce as long 
     as Congress imposes the same minimum wage requirements on 
     non-state workers in, or affecting, interstate commerce. 
     Congress can regulate the States using the Commerce Clause if 
     it imposes requirements on the States that are generally 
     applicable--that is, if it imposes the same burdens on 
     private employers. Congress cannot single out the States for 
     special burdens; it cannot commandeer or take control over 
     the States or order a state legislature to increase the home 
     rule powers of the City of Chicago; it cannot enact federal 
     legislation that adds to or revises Chicago's state created 
     and limited delegated powers.
       The leading case, New York v. United States, held that the 
     Commerce Clause does not authorize the Federal Government to 
     conscript state governments as its agents. ``Where a federal 
     interest is sufficiently strong to cause Congress to 
     legislate, it must do so directly; it may not conscript state 
     governments as its agents.'' The proposed Durbin-Lipinski 
     legislation will do exactly what New York prohibits: it will 
     conscript the City of Chicago as its agent and interfere with 
     the relationship between the State of Illinois and the entity 
     it created, the City of Chicago.
       New York invalidated a legislative provision that is 
     strikingly similar to the proposed federal Durbin-Lipinski 
     legislation. The Court, in the New York case, considered the 
     Low-Level Radioactive Waste Policy Amendments Act of 1985. 
     Congress was concerned with a shortage of disposal sites for 
     low level radioactive waste. The transfer of waste from one 
     State to another is obviously interstate commerce. Congress, 
     in order to deal with the waste disposal problem, crafted a 
     complex statute with three parts, only one of which was 
     unconstitutional. There were a series of monetary incentives, 
     which the Court unanimously upheld under Congress' broad 
     spending powers. Congress also authorized States that adopted 
     radioactive waste and storage disposal guidelines to bar 
     waste imported from States that had not adopted certain 
     storage and disposal programs. The Court, again unanimously, 
     relied on long-settled precedent that approves of Congress 
     creating such trade barriers in interstate commerce.
       Then the Court turned to the ``take title'' provisions and 
     held (six to three) that they were unconstitutional. The 
     ``take title'' provision in effect required a State to enact 
     certain regulations and, if the State did not do so, it must 
     (upon the request of the waste's generator or owner), take 
     title to and possession of the waste and become liable for 
     all damages suffered by the generator or owner as a result of 
     the State's failure to promptly take possession.
       The Court explained that Congress could, if it wished, 
     preempt entirely state regulation in this area and take over 
     the radioactive waste problem. But Congress could not order 
     the States to change their regulations in this area. Congress 
     lacks the power, under the Constitution, to regulate the 
     State's regulation of interstate commerce. This is what the 
     proposed federal O'Hare Airport bill will do: it will 
     regulate the State's regulation of interstate commerce by 
     telling the State that it must act as if the City of Chicago 
     has complied with the Illinois Aeronautics Act and other 
     state rules.
       In a nutshell, Congress cannot constitutionally commandeer 
     the legislative or executive branches. The Court pointed out 
     that this commandeering is not only unconstitutional (because 
     nothing in our Constitution authorizes it) but also bad 
     policy, because federal commandeering serves to muddy 
     responsibility, undermine political accountability, and 
     increase federal power.
       The proposed Durbin-Lipinski legislation prohibits Illinois 
     from applying its laws regulating one of its cities. The 
     proposed federal law also authorizes the federal government 
     to make an agreement with Chicago, pursuant to which Chicago 
     will assume some significant obligations, even though present 
     state law gives Chicago no authority to engage in this 
     activity. As the six to three New York decision made clear:
       ``A State may not decline to administer the federal 
     program. No matter which path the State chooses, it must 
     follow the direction of Congress. . . . No other federal 
     statute has been cited which offers a state government no 
     option other than that of implementing legislation enacted by 
     Congress. Whether one views the take title provision as lying 
     outside Congress' enumerated powers, or as infringing upon 
     the core of state sovereignty reserved by the Tenth 
     Amendment, the provision is inconsistent with the federal 
     structure of our Government established by the 
     Constitution.''
       The proposed Durbin-Lipinski legislation is very much like 
     the law that six justices invalidated in New York. The O'Hare 
     bill provides that, no matter what the State chooses, ``it 
     must follow the direction of Congress.'' The State has ``no 
     option other than that of implementing legislation enacted by 
     Congress.''
       The Court in New York went on to explain that there are 
     legitimate ways that Congress can impose its will on the 
     states:
       ``This is not to say that Congress lacks the ability to 
     encourage a State to regulate in a particular way, or that 
     Congress may not hold out incentives to the States as a 
     method of influencing a State's policy choices. Our cases 
     have identified a variety of methods, short of outright 
     coercion, by which Congress may urge a State to adopt a 
     legislative program consistent with federal interests. Two of 
     these methods are of particular relevance here.''
       The Court then discussed those two alternatives. First, 
     there is the spending power, with Congress attaching 
     conditions to the receipt of federal funds. The proposed 
     Durbin-Lipinski legislation rejects the spending power 
     alternative. Second, ``where Congress has the authority to 
     regulate private activity under the Commerce Clause, we have 
     recognized Congress' power to offer States the choice of 
     regulating that activity according to federal standards or 
     having state law pre-empted by federal regulation.'' The 
     proposed Durbin-Lipinski legislation rejects that alternative 
     as well. It does not propose that Congress directly takeover 
     and expand 
     O'Hare Airport. Instead, it proposes that the City of Chicago 
     be allowed to exercise power that the State does not allow 
     the City to exercise.
       New York v. United States did not question ``the authority 
     of Congress to subject state governments to generally 
     applicable laws.'' But Congress cannot discriminate against 
     the States and place on them special burdens. It cannot 
     commandeer or command state legislatures or executive branch 
     officials to enforce federal law. Congress can regulate 
     interstate commerce and States are not immune from such 
     regulation just because they are States. For example, 
     Congress can forbid employers from hiring child labor to work 
     in coal mines, whether a private company or a State owns the 
     coal mine and employs the workers.
       Printz v. United States. Following the New York decision, 
     the Court invalidated another federal statute imposing 
     certain administrative duties on local law enforcement 
     officials, in Printz v. United States. The Brady Act, for a 
     temporary period of time, required local law enforcement 
     officials to use ``reasonable efforts'' to determine if 
     certain gun sales were lawful under federal law. The federal 
     law also ``empowered'' these local officers to grant waivers 
     of the federally prescribed 5-day waiting period for handgun 
     purchases. Note that the proposed Durbin-Lipinski legislation 
     will also ``empower'' the City of Chicago to do that which 
     Illinois does not authorize the city to do.
       To make the analogy even more compelling, the chief law 
     enforcement personal suing in the Printz case said that state 
     law prohibited them from undertaking these federal 
     responsibilities. That, of course, is the exact position in 
     which Chicago finds itself. State law prohibits Chicago from 
     entering into and committing to these federal 
     responsibilities (e.g., the agreements between Chicago and 
     the FAA in Sec. 3(f) of the proposed Durbin-Lipinski 
     legislation call for construction as a ``federal project'' 
     but then require Chicago to either construct or allow 
     construction without a permit from the State of Illinois).
       We should realize that the proposed Durbin-Lipinski 
     legislation--in commanding and singling out the State of 
     Illinois to, in effect, repeal its legislation governing the 
     powers delegated to the City of Chicago--is quite unusual and 
     not at all in the tradition of federal legislation. For most 
     of our history, Congress would explicitly only ``recommend'' 
     or ``request'' the assistance of the governors and state 
     legislatures in implementing federal policy. It is only in 
     very recent times that Congress has sought explicitly to 
     commandeer or order the legislative and executive branches of 
     the States to implement federal policies. Because such 
     federal legislative activity is recent, the case law in this 
     area is recent, but the case law is clear in prohibiting this 
     type of federal assertion of power.

[[Page 13967]]

       New York v. United States held that Congress cannot 
     ``command a State government to enact state regulation.'' 
     Congress may regulate interstate commerce directly, but it 
     may not ``regulate state governments' regulation of 
     interstate commerce.'' The Federal Government may not 
     ``conscript state governments as its agents.'' Congress has 
     the ``power to regulate individuals, not States.''
       In short, there are important limits on the power of the 
     federal government to commandeer the state legislature or 
     state executive branch officials for federal purposes. 
     Another way to think about this issue is that, to a certain 
     extent, the Constitution forbids Congress from imposing what 
     recently have been called ``unfunded mandates'' on state 
     officials. Congress cannot simply order the States or state 
     officials or a city to take care of a problem. Congress can 
     use its spending power to persuade the States by using the 
     carrot instead of the stick.
       While there are those who have attacked the restrictions 
     that New York v. United States have imposed on the Federal 
     Government, it is worth remembering the line-up of the Court 
     in Maryland v. Wirtz when the justices first considered this 
     issue. That case rejected the applicability of the Tenth 
     Amendment and held that it was constitutional for Congress to 
     set the wages, hours, and working conditions of employees, 
     including state employees in interstate commerce. However, 
     Justice Douglas, who was joined by Justice Stewart, 
     dissented. Douglas found the law to be a ``serious invasion 
     of state sovereignty protected by the Tenth Amendment'' and 
     ``not consistent with our constitutional federalism.'' He 
     objected that Congress, using the broad commerce power, could 
     ``virtually draw up each State's budget to avoid `disruptive 
     effect[s]''' on interstate commerce. New York v. United 
     States prevents this result.
       The ``generally applicable'' restriction is important, and 
     it explains Reno v. Condon. Congress enacted the Driver's 
     Privacy Protection Act (DPPA), which limited the ability of 
     the States to sell or disclose a driver's personal 
     information to third parties without the driver's consent. 
     Chief Justice Rehnquist, for a unanimous Court, upheld the 
     law as a proper regulation of interstate commerce and not 
     violating any principles of federalism found in New York v. 
     United States or Printz because the law was ``generally 
     applicable.''
       Reno grew out of a congressional effort to protect the 
     privacy of drivers' records. As a condition of obtaining a 
     driver's license or registering a car, many States require 
     drivers to provide personal information, such as name, 
     address, social security number, medical information, and a 
     photograph. Some States then sell this personal information 
     to businesses and individuals, generating significant 
     revenue. To limit such sales, Congress enacted the DPPA, 
     which governs any state department of motor vehicles (DMV), 
     or state officer, employee, or contractor thereof, and any 
     resale or re-disclosure of drivers' personal information by 
     private persons who obtained the information from a state 
     DMV. The Court concluded: ``The DPPA's provisions do not 
     apply solely to States.'' Private parties also could not buy 
     the information for certain prohibited purposes nor could 
     they resell the information to other parties for prohibited 
     purposes, and the States could not sell the information to 
     the private parties for certain purposes if the private 
     parties could not buy it for those purposes.
       Unlike the law in New York, the Court concluded that the 
     DPPA does not control or regulate the manner in which States 
     regulate private parties, it does not require the States to 
     regulate their own citizens, and it does not require the 
     state legislatures to enact any laws or regulations. Unlike 
     the law in Printz, the DPPA does not require state officials 
     to assist in enforcing federal statutes regulating private 
     individuals. This DMV information is an article of commerce 
     and its sale or release into the interstate stream of 
     business is sufficient to support federal regulation.
       The DPPA is a ``generally applicable'' federal law 
     regulating commerce because it regulates the universe of 
     entities that participate as suppliers to the market for 
     motor vehicle information--the states as initial suppliers 
     and the private resellers or redisclosers of this 
     information. ``South Carolina has not asserted that it does 
     not participate in the interstate market for personal 
     information. Rather, South Carolina asks that the DPPA be 
     invalidated in its entirety, even as applied to the States 
     acting purely as commercial sellers.''


                               Conclusion

       The proposed federal law dealing with the O'Hare Airport 
     expansion is most likely unconstitutional because it imposes 
     federal rules on the relationship between a city and the 
     State that created the city. It subjects Illinois to special 
     burdens that are not generally applicable to private parties 
     or even to other States. It authorizes the City of Chicago to 
     do that which Illinois now prohibits.
       There is no escape from the conclusion that the proposed 
     federal law does not regulate the behavior of private parties 
     in interstate commerce. It does not subject the State of 
     Illinois to ``generally applicable'' legislation. Instead, 
     Congress is regulating the state's regulation of interstate 
     commerce. Congress may not conscript the instrumentalities of 
     state government and state power as tools of federal power. 
     The case law is clear that Congress does not have this power.
           Sincerely,
                                                Ronald D. Rotunda,
     The Albert E. Jenner, Jr. Professor of Law.
                                  ____


           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

[[Page 13968]]

     at several air traffic control facilities throughout the 
     Chicagoland area, and feel that I have a unique perspective 
     on enhancing future airport development.
       To date, most of you have heard numerous insights on a 
     proposed third major airport for Chicago. Let me offer 
     another perspective from a ``controller's viewport''. Within 
     a small twenty-mile radius of the Chicagoland area, lie four 
     of the busiest airports in the country. Approximately one and 
     one half million airplanes take off and land at Palwaukee, 
     Dupage, Midway, and O'Hare Airports yearly! This puts a 
     tremendous strain on the Air Traffic Controllers who struggle 
     to keep this area safe and without significant delay. With 
     air travel continuously increasing, delays and safety will 
     become a nearly impossible challenge.
       Plans for expansion at the two major Chicago airports will 
     not be enough to meet demands. O'Hare airport has reached its 
     maximum capacity creating consequential delays. There are not 
     enough available gates, runways, and taxiways to serve all 
     the aircraft. Although there are plans to add additional 
     gates and another runway, this will not address the taxiway 
     problem. Due to the layout of O'Hare airport, in my opinion 
     there is no effective way to construct additional taxiways 
     that will have a positive impact on airport operations. Thus 
     making any other method to increase capacity ineffective.
       The problems that face O'Hare are some of the same problems 
     facing Midway Airport. Midway boasts as being aviation's 
     busiest square mile. Nowhere else are there more commercial 
     airplanes landing and departing in such a condensed area. 
     Unfortunately, Midway Airport is very condensed. Due to 
     runway lengths, it can only handle the smallest commercial 
     aircraft. The airport is severely landlocked with major 
     streets, houses and businesses immediately surrounding the 
     field. Even with the current terminal expansion project in 
     effect, an insufficient number of taxiways and the size of 
     the runways, in my opinion limit any significant increase in 
     traffic.
       The need for a third major airport is loud and clear. With 
     the projections of air traffic on the rise, additional 
     airports must become available. In my opinion, Peotone is an 
     excellent location for a major commercial airport. Peotone is 
     located just outside the main flow of air traffic in and out 
     of Chicago. Any additional airplanes created by the third 
     airport would not adversely effect air traffic facilities 
     located east, south, and west of Peotone. A third airport 
     located in Peotone would not be significantly effected by 
     Chicago's air traffic, which is rapidly reaching a saturation 
     point, but instead would aid in alleviating the congestion 
     heading into Chicago.
       Another point of interest, which may have been overlooked, 
     is corporate aircraft. The use of corporate aircraft is one 
     of the fastest growing fields in aviation. There are very 
     few, if any airports that can accommodate corporate aircraft 
     in the south Chicagoland area. With the pending closure of 
     Meigs Field in Chicago, the Petone airport would fill the 
     need for another corporate airport crucial to south 
     Chicagoland businesses. Furthermore, suggestions that a third 
     major airport being located in the immediate Chicagoland 
     area, namely Gary, Indiana, would not alleviate the 
     saturation problem Chicago is already facing.
       In closure, I would like to thank all those involved with 
     the Petone Airport project. I am greatly anticipating the 
     future events surrounding this project.
                                  ____



                                             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

[[Page 13969]]

     their distance from the region's airports. This economic 
     disparity is clearly evident from the following maps, which 
     show job concentrations in 1960 and 1990. This period marked 
     major declines in manufacturing jobs in the region's South 
     Side; and a rise in both manufacturing and service jobs in 
     the North/Northwest, around O'Hare. Airport access was the 
     difference.
       The solution to the region's needs is the Third Chicago 
     Airport. Development of the Third Chicago Airport is a true 
     urbanist's dream: obtaining multiple benefits from one 
     investment. Why, then, is it being ignored? When you have two 
     powerful and thoughtful representatives of the people--
     Congressman Henry Hyde saying ``we've had enough,'' and 
     Congressman Jesse Jackson, Jr. saying ``let us have some--
     perhaps we should listen to them. Other representatives--
     Congressmen Jerry Weller, Bobby Rush, and Tom Ewing, Senator 
     Peter Fitzgerald, Governor George Ryan, Senate President Pate 
     Phillip--plus scores of local mayors, hundreds of local 
     businesses and hundreds of thousands of residents, have 
     joined in the effort to bring the airport to the South 
     Suburbs. Perhaps, with the airport in place, we can begin to 
     truly balance growth, encourage infill development and share 
     the wealth of the region.


             the planning process: twelve years of findings

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


                      the development alternatives

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


                       the two sides of the coin

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

       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.

[[Page 13970]]

       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.
       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.

[[Page 13971]]

       The Commission's immediate purpose in conducting the 
     workshops was to seek public guidance in the development of 
     new demographic forecasts for the region. These forecasts 
     will be used in the preparation of the Regional 
     Transportation Plan for 2020. Draft forecasts will be 
     completed by early 1997. At the same time, the Chicago Area 
     Transportation Study (CATS) will complete a draft 
     transportation plan. After a period of public review, the 
     transportation plan will be tested for conformity with the 
     requirements of the Clean Air Act. Following additional 
     opportunity for public comment, final forecasts will be 
     endorsed and the Regional Transportation Plan for 2020 will 
     be adopted. These actions are scheduled for June 1997.
       Beyond the immediate need to support the transportation 
     planning process, this regional discussion advances NIPC's 
     mission of striving for consensus on policies and plans for 
     action which will promote the sound and orderly development 
     of the northeastern Illinois area. The purpose of this 
     newsletter is to inform the region of what we have heard and 
     to encourage continuing deliberation on what kind of region 
     we want to be in the next century.
     What We Have Heard
       Several general conclusions emerged from the workshops. The 
     first is that there is widespread, though by no means 
     unanimous, belief that the past trend of dispersed, low-
     density residential and employment growth has had unintended 
     negative consequences which must be moderated to some degree 
     in the interests of environmental quality, prudent public 
     investment, and social equity. There is also substantial 
     support for some public policy measures which could help 
     achieve that moderated growth. These will be described in 
     more detail below. Some measures which could be highly 
     effective in moderating past trends are widely agreed to lack 
     political acceptability in this region. Finally, there is 
     broad support for measures which would improve the quality of 
     local planning and development within either a continued 
     trends or moderated trend approach.
     The Forecast: A Growing Region
       The preparation of forecasts of future population, 
     households, and employment is one of NIPC's most important 
     responsibilities. These are not simply forecasts of the 
     numbers of people, households and jobs which will be in the 
     region in a future year. People, households, and jobs imply 
     houses, roads, sewers, and parks. The forecasts thus 
     represent the Commission's best estimate of how activities 
     and facilities will be distributed across the region: where 
     new housing will be necessary and old housing may become 
     vacant, where new or expanded streets and sewers will be 
     required, and where streams and wetlands will come under 
     pressure form growing population. The forecasts thus have 
     implicit in them a generalized land use plan for the region. 
     It is critical that they be as realistic as possible in 
     reflecting the trends and constraints of the market, the 
     influences of public policy, and expectations of local 
     governments.
       We have previously described the process being used to 
     develop forecasts for the year 2020 (NIPC Reports, January 5, 
     1996). In March 1994, the Commission endorsed regional 
     forecast totals of 9 million people, 3.4 million households, 
     and 5.3 million jobs in 2020. These figures represent a 25 
     percent increase in population and a 37 percent increase in 
     employment from 1990 to 2020. By way of comparison, between 
     1970 and 1990 the region's population increased by only four 
     percent and employment by 21 percent. The amount of land 
     devoted to urban uses, however, increased by 34 percent 
     during that twenty-year period. In view of this finding about 
     land consumption, the forecasted future growth has the 
     potential to add seriously to pressures on the transportation 
     system, air and water quality, and agricultural land. The 
     Commission thus concluded that alternatives to past patterns 
     of growth had to be presented to the region for discussion.
     A Preferred Development Pattern in Northeastern Illinois
       On June 26, 1996, the Commission conducted the first of two 
     regional workshops on alternative growth scenarios and their 
     implications. The intent was to assess how much support there 
     might be for different development patterns and how much 
     acceptance of their probable costs. It was hoped that 
     participants would set aside issues of feasibility for the 
     time being and respond to the question of what is the most 
     desirable future for the region. The workshop was attended by 
     127 people representing a broad spectrum of organizations and 
     interests.
       Three general scenarios were presented. Each was designed 
     to illustrate the outcome of a unique combination of public 
     policies with respect to transportation and community 
     development. The broad patterns of new household and job 
     growth to which these scenarios would lead are shown in the 
     maps below. Participants were not asked to express a 
     preference among the scenarios themselves, but to evaluate 
     the relative importantance of the impacts which each would 
     have on communities and the natural environment. Questions to 
     the participants concerned the importance of land development 
     patterns which would (1) help preserve farmland, (2) 
     encourage the use of public transit, (3) protect high-quality 
     watersheds from the impacts of urbanization, and (4) promote 
     affordable housing close to centers of job growth.
       Continued Trends. This is the ``baseline'' scenario which 
     assumes the least change, in terms of public policy, from 
     recent conditions. Only limited highway and rail transit 
     capacity would be built beyond what is currently committed 
     for funding. Future demand for aviation service would be met 
     at O'Hare and Midway. The broad pattern of low-density 
     dispersal of jobs and households would continue. Households 
     and jobs in Chicago and some inner suburbs would continue to 
     decline while they would increase in the rest of the region. 
     The largest number of new jobs would be located in suburban 
     Cook County, and DuPage County would gain jobs but at 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

[[Page 13972]]

     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 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'' to get to his or her ultimate 
     destination. The cost of this territorial ``Fortress Hub'' 
     monopoly to the 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 allies 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

[[Page 13973]]

     dominant carriers at O'Hare)--along with other major airlines 
     through the Air Transport Association--have engaged in a 
     concerted effort to defeat construction of a new South 
     Suburban Airport, an airport that would provide significant 
     capacity opportunities for major new competition to enter the 
     Chicago market. United executives have stated their goal as 
     ``Kill Peotone''.
       United and American have been assisted in their ``Kill 
     Peotone'' (and thus kill new competitive capacity) campaign 
     by representatives of the City of Chicago--including 
     Chicago's consultants have been paid several million dollars 
     in fees to assist Chicago and United and American in 
     expanding O'Hare and in obstructing development of a new 
     South Suburban Airport.
       Much of the money paid to these consultants has come from 
     either: (1) federal Passenger Facility Charge (PFC) funds, 
     (2) federal Airport Improvement Program (AIP) funds, or (3) 
     federally subsidized municipal airport bonds (``GARBs'' 
     General Airport Revenue Bonds). Thus, we have the following 
     spectacle--not only are the airlines and Chicago engaged in a 
     monopolistic arrangement designed to prevent new competition 
     from entering the Chicago market (i.e., through the new 
     airport)--but much of the money to implement this illegal 
     arrangement is coming from federal taxpayer dollars. The GAO 
     and the Department of Justice should be asked to conduct an 
     independent audit of all PFC, AIP, and GARB expenditures at 
     O'Hare to determine if any federal funds were used as part of 
     a campaign to ``Kill Petone''--i.e., a campaign to oppose 
     construction of a new South Suburban Airport.
       7. Federal Officials Have Participated in and Supported the 
     Big Seven's Illegal Monopolistic Arrangement to Refuse to 
     Compete in the Chicago Market. Not only have federal funds 
     been used to support the major airlines illegal monopolistic 
     arrangement to refuse to compete in the Chicago market, but 
     it appears that federal officials within the Administration 
     have worked with the major airlines and Chicago to assist in 
     this antitrust arrangement to prevent the development of a 
     new airport in metropolitan Chicago. For the last several 
     years, federal administration officials--several of whom are 
     former Chicago officials who worked for the City of Chicago--
     have blocked development of the new South Suburban Airport 
     through a series of spurious legal claims that federal law 
     requires that there be a ``consensus'' between the State of 
     Illinois and the City of Chicago before a new metropolitan 
     airport can be constructed. No such legal requirement exists.
       Because of the active participation of key figures in the 
     current administration in promoting and supporting the 
     continued blockage of new airport development in metropolitan 
     Chicago--in concert with the illegal refusal of the major 
     airlines to compete in the Chicago market by using the new 
     airport--the impartiality and lack of bias of the 
     Administration in conducting law enforcement in this area is 
     legitimately suspect. The Attorney General should be asked to 
     appoint an independent prosecutor to conduct the antitrust 
     investigation and to undertake all appropriate civil legal 
     actions needed to correct the ongoing antitrust violations.
       8. Defining the Market Under Monopoly Control and in Need 
     of New Competition--The Hub-and-Spoke Market. The heart of 
     the monopoly overcharges to travelers in the Chicago market 
     is the absence of competition in the ``hub-and-spoke'' market 
     in Chicago. None of the other Big Seven will come into the 
     Chicago market to establish a competitive hub-and-spoke 
     operation.
       In an attempt to expand their monopoly and prevent new 
     competition from entering the Chicago market, United and 
     American--along with their surrogate allies--have sought to 
     distract attention by suggesting a south suburban airport in 
     metro Chicago as a ``point-to-point'' airport--not unlike 
     Midway. United and American argue that O'Hare should be the 
     only ``hub-and-spoke'' airport in metropolitan Chicago.
       By shaping the argument in this fashion, United and 
     American guarantee that they will be allowed to continue and 
     dramatically expand their Fortress Hub monopoly at O'Hare. 
     According to their arguments, the lion's share of all the 
     origin-destination traffic in the region--and all of the 
     connecting and international traffic--should go to the sole 
     hub-and-spoke airport in the region: O'Hare. Any minor 
     overflow of ``point-to-point'' origin-destination traffic 
     that a dramatically expanded O'Hare and Midway could not 
     handle (if any) could be addressed in a small ``point-to-
     point'' airport like the South Suburban Airport or Gary.
       What United and American gloss over is the fact that there 
     is plenty of competition in the Chicago market in point-to-
     point service. The real lack of competition in the Chicago 
     market is in the lack of additional hub-and-spoke competition 
     to challenge the hub-and-spoke duopoly of United and American 
     at Fortress O`Hare. It is this market dominance of the hub-
     and-spoke market--not the point-to-point--where lack of 
     competition gouges the business traveler and those travelers 
     from ``spoke'' cities who must use a single Fortress Hub. 
     There is a desperate need for new competitive hub-and- spoke 
     service in the Chicago market and the place to put that hub-
     and-spoke is the new South Suburban Airport.
       9. Beyond Antitrust Law Enforcement, Federal Transportation 
     Officials Play a Major Antitrust Policy Role--In Either 
     Promoting Monopoly Abuses or Encouraging Competition--By 
     Their Decisions on the Use of Federal Taxpayer Funds. Not 
     only have federal officials blocked development of new 
     competition by blocking a new airport, federal approval of 
     federal expenditures for major physical changes at O'Hare 
     will exacerbate the monopoly power of American and United in 
     this region.
       Chicago's so-called ``World Gateway'' program has been 
     designed in consultation with United and American to enhance 
     and expand United and American's hub-and-spoke system at 
     O'Hare. Chicago's World Gateway proposal is not designed to 
     bring new hub-and-spoke competition into O'Hare or the 
     Chicago market to compete with United and American.
       Thus, Chicago's World Gateway proposal will enhance and 
     expand United and American's Fortress Hub monopoly in the 
     Chicago market. Since the physical design proposed by United 
     and American and Chicago can only go forward if federal 
     Transportation Department officials approve federal taxpayer 
     funds to subsidize the project, federal officials are being 
     asked to use billions of dollars in federal taxpayer funds to 
     expand and enhance the illegal Fortress Hub monopoly of 
     American and United at O'Hare. No federal officials appear to 
     be examining whether spending 10 billion dollars (much of it 
     from federal taxpayers) at O'Hare makes economic sense when 
     much more new capacity to support competitive hub-and-spoke 
     operations can be constructed at a new metropolitan airport 
     for less than half the cost. Nor are federal officials 
     examining whether the use of billions of dollars of federal 
     taxpayer funds to expand United and American's hub-and-spoke 
     duopoly at Fortress O'Hare--essentially using federal 
     taxpayer funds to subsidize expansion of monopoly power--is a 
     proper use of federal funds.
       10. The Lifting of the Slot Limits at O'Hare Will Not 
     Provide Sufficient Capacity to Allow Significant New 
     Competition to Enter the Chicago Area Market. Much of the 
     debate over the recent passage of the federal reauthorization 
     of the Federal Aviation Program involved the issue of lifting 
     ``slot restrictions'' at LaGuardia and Kennedy airports in 
     New York and O'Hare in Chicago. One of the principal asserted 
     justifications for lifting the slots was to provide access to 
     so-called ``new entrant'' carriers that would presumably 
     provide competition for the dominant carriers at O'Hare and 
     force prices down. Yet FAA's own capacity studies at O'Hare 
     demonstrate that O'Hare is already beyond acceptable limits 
     of capacity and can provide only marginal capacity access--if 
     any.
       In addition, as predicted by Senator Peter Fitzgerald and 
     Congressman Henry Hyde, any arguable incremental theoretical 
     capacity at O'Hare will rapidly be consumed by United and 
     American--expanding their monopoly. As stated by the Illinois 
     Department of Transportation, the only effective way to 
     provide sufficient capacity for major new competition in the 
     Chicago market is to build major new capacity in the 
     metropolitan Chicago area.
       11. A New Runway at O'Hare is Intended to Increase Capacity 
     to Expand United and American's Monopoly Power. The airlines' 
     current public relations argument is that the lion's share of 
     all the origin-destination traffic in the region (and all of 
     the connecting and international traffic) should go to the 
     sole hub-and-spoke airport in the region (O'Hare). Any minor 
     overflow of point-to-point origin-destination traffic that a 
     dramatically expanded O'Hare and Midway could not handle (if 
     any) could be addressed in a small point-to-point airport 
     like the South Suburban Airport or Gary.
       Paralleling this argument is the claim by the airlines' 
     allies that a new runway at O'Hare is needed to ``reduce 
     delays.'' They claim that a new runway would not increase 
     O'Hare capacity but simply reduce delays.
       Yet an analysis using FAA's own capacity analysis standards 
     and criteria demonstrates that a new runway at O'Hare would 
     substantially increase the capacity of the airport. This 
     capacity increase at O'Hare would dramatically expand 
     American's and United's hub-and-spoke monopoly at Fortress 
     O'Hare. Further, it would virtually doom the economic 
     justification for the new south suburban airport because the 
     new ``delay'' runway--once built--could easily be used to 
     carry the new additional traffic for which the new airport 
     was intended. Simply by piecemealing incremental expansion at 
     O'Hare, Chicago and American and United can keep the region 
     under the thumb of the Fortress O'Hare monopoly.
       12. United's and American's Fight to Preserve and Expand 
     Fortress Hub Monopoly Power at O'Hare Has Grave Social, 
     Economic, Public Health, and Quality of Life Consequences for 
     the Region. Much of the discussion in this paper focuses on 
     the billions of dollars in monopoly induced overcharges 
     inflicted on air travelers--particularly the business 
     traveler--as a result of the Fortress Hub monopoly system. 
     But these monopoly abuses also inflict other serious

[[Page 13974]]

     harm on a variety of important public and social interests.
       The consequences of these abuses of monopoly power for the 
     metro Chicago region are stark and severe:
       O'Hare area communities will be subjected to more noise, 
     more air pollution, and more safety hazards because--under 
     the United, American, and Chicago proposal--all the 
     international, all the transfer traffic, and the lion's share 
     of the origin-destination traffic are jammed into an already 
     overstuffed O'Hare. Any new airport--even if built--will 
     simply receive the origin-destination overflow (if any) from 
     a vastly expanded O'Hare and Midway.
       South Chicago and south suburban communities will continue 
     to suffer serious economic decline because the South Suburban 
     Airport--which should have been built years ago--lies hostage 
     to the unholy alliance struck between the monopoly interest 
     of United and American and the political pique of Chicago's 
     mayor.


                            recommendations

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


                   introduction--relevant quotations

       Alfred Kahn, the ``father'' of airlines deregulation:
       Anyone who says applying antitrust laws is the same as re-
     regulation is simply ignorant. To preserve competition we 
     need the antitrust laws and vigorous enforcement of the 
     antitrust laws.
       When we deregulated the airlines, we certainly did not 
     intend to exempt them from the antitrust laws.
       Gordon Bethune, Chairman and CEO, Continental Airlines:
       ``Continental chief says hub competition over,'':
       Competition among airlines for dominance at major U.S. 
     airports is virtually a thing of the past, the chairman of 
     Continental Airlines said on Monday.
       Continental chief executive Gordon Bethune, in a break from 
     the usual industry line that competition reigns supreme, said 
     the large air carriers have staked out their respective hubs 
     and will be difficult to dislodge.
       ``In the last 20 years, the marketplace of the United 
     States has been sorted out. American (Airlines) kind of 
     controls Dallas-Fort Worth and Miami and we've got Newark, 
     Houston and Cleveland. Delta's got Atlanta,'' Bethune said in 
     remarks to the National Defense Transportation Association 
     annual conference.
       U.S. Senator Mike Dewine:
       During the last year, there has been rising concern among 
     some of the smaller airlines that the seven largest passenger 
     carriers in the U.S. are no longer competing against each 
     other. Essentially, the argument goes, the ``Big Seven'' have 
     carved up the U.S. aviation market . . .
       CEOs of 16 major airlines tell Illinois' Governor that they 
     will not use new airport in metropolitan Chicago:
       We are writing to express our concerns about further 
     planning and development of the so-called Third Chicago 
     Airport. It is our understanding that the State of Illinois 
     will not proceed with the construction of a third airport 
     without the support of the airlines. This letter is intended 
     to inform you that the airlines oppose further planning and 
     construction of this facility. . .
       USA Today:
       In the two decades since deregulation forced the government 
     to stop telling carriers what fares to charge and which 
     cities to serve, the big airlines have built up ``fortress 
     hubs'' where, without meaningful competition, they alone 
     decide where to go, how often to go there and how much to 
     charge.
       What travelers suspect is true: Airfares are climbing fast, 
     and nowhere is the situation worse than at the hubs for the 
     nation's largest airlines.
       Business travelers have been especially hard hit at hubs.
       And almost everywhere, hub fares, especially for business 
     fliers, are soaring.
       Even when low-fare carriers enter a hub market, they 
     usually control so little of the traffic that they can't do 
     much to bring fares down.
       New York Times:
       Business travelers feel particularly abused because they 
     account for more than half of airline revenue. For in the 
     through-the-looking-glass world of airline pricing, the fares 
     paid by leisure travelers, who book as long as a month in 
     advance and stay over a weekend night, have in many cases 
     declined, while last-minute fully refundable fares, which are 
     most often paid by business travelers, are skyrocketing.
       ``The carriers always say that the business traveler is 
     inelastic,'' said Peter M. Buchheit, director of travel and 
     meeting services for the Black & Decker Corporation, which 
     spent $18 million on air tickets for its American employees 
     last year. ``We need to travel so we will pay whatever it 
     costs. But it has reached a point where we can't pay it 
     anymore.''
       The burden of high fares is even greater on small 
     companies. John W. Galbraith, president of Twin Advertising, 
     a small company based in Rochester that had $2 million in 
     billings last year, said he was thinking about dropping 
     clients outside the city because the high cost of visiting 
     them cancels out the profit he makes from having their 
     business.
       ``Basically, what the airlines have done to companies like 
     ours is kept us from growing,'' he said. (New York Times 
     January 11, 1998)
       United States Supreme Court on horizontal market 
     allocations as per se violations of federal antitrust law:
       One of the classic examples of a per se violation of Sec. 1 
     [of the Sherman Antitrust Act] is an agreement between 
     competitors at the same level of the market structure to 
     allocate territories in order to minimize competition. . . . 
     This Court has reiterated time and time again that 
     `[h]orizontal territorial limitations . . . are naked 
     restraints of trade with no purpose except stifling of 
     competition.' Such limitations are per se violations

[[Page 13975]]

     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 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:

[[Page 13976]]

       ``There are numerous examples besides these to demonstrate 
     that without the competition of a new entrant, the fares at 
     Chicago are increasing or remain inordinately high.''
       ``We encourage and support your [USDOT's] focus on 
     anticompetitive practices that are injuring commerce, smaller 
     cities, and consumers in Illinois and throughout the region 
     serviced by O'Hare Airport as the hub of United Airlines and 
     American Airlines. We strongly urge, however, that the 
     enforcement policies should be part of a broader initiative 
     that will insure that there will be airport capacity 
     available in the Chicago area that will provide new airline 
     entrants the opportunity to compete with United and American. 
     Additional airport capacity is vital to restoring airline 
     competition in the Chicago, Illinois, and Midwestern 
     markets.''
       ``There is simply no room at O'Hare for new entrant 
     airlines to pose competitive challenges to the dominant 
     airlines.''
       4. Time Sensitive Business Traveler Biggest Loser in 
     Fortress Hub Monopoly System.
       The air travel consumer most seriously harmed by this 
     horizontal Fortress Hub market allocation is the business 
     traveler--particularly the small to medium size business 
     traveler who cannot negotiate bulk fare discounts and who 
     must make time sensitive business trips at unrestricted coach 
     fares.
       The Illinois Department of Transportation estimates this 
     monopoly based fare penalty at O'Hare alone exceeds several 
     hundred million dollars per year. Nationally, the loss to the 
     traveling public from these monopoly premiums at Fortress 
     Hubs is likely to exceed several billion dollars annually.
       As stated in major articles on the subject by USA Today and 
     the New York Times:
       What travelers suspect is true: Airfares are climbing fast, 
     and nowhere is the situation worse than at the hubs for the 
     nation's largest airlines.
       Business travelers have been especially hard hit at hubs
       And almost everywhere, hub fares, especially for business 
     fliers, are soaring. (USA Today February 23, 1998)
       Business travelers feel particularly abused because they 
     account for more than half of airline revenue. For in the 
     through-the-looking-glass world of airline pricing, the fares 
     paid by leisure travelers, who book as long as a month in 
     advance and stay over a weekend night, have in many cases 
     declined, while last-minute fully refundable fares, which are 
     most often paid by business travelers, are skyrocketing.
       ``The carriers always say that the business traveler is 
     inelastic,'' said Peter M. Buchheit, director of travel and 
     meeting services for the Black & Decker Corporation, which 
     spent $18 million on air tickets for its American employees 
     last year. ``We need to travel so we will pay whatever it 
     costs. But it has reached a point where we can't pay it 
     anymore.''
       The burden of high fares is even greater on small 
     companies. John W. Galbraith, president of Twin Advertising, 
     a small company based in Rochester that had $2 million in 
     billings last year, said he was thinking about dropping 
     clients outside the city because the high cost of visiting 
     them cancels out the profit he makes from having their 
     business.
       ``Basically, what the airlines have done to companies like 
     ours is kept us from growing,'' he said. (New York Times 
     January 11, 1998)
       Put bluntly, the Big Seven has used their monopoly power at 
     Fortress Hubs to literally extort billions of dollars 
     annually from captive travelers--most often time sensitive 
     business travelers living in these airlines' own Fortress Hub 
     communities.
       5. The Second Biggest Loser in the Fortress Hub Monopoly 
     System is the ``Spoke'' Passenger.
       The second biggest loser from this Fortress Hub monopoly 
     system is the so-called ``spoke'' passenger in the small to 
     medium size community that serves as the ``spoke'' to a 
     single large metropolitan Fortress Hub. Because the dominant 
     Big Seven airline at a Fortress Hub has no competition at its 
     hub, it is free to charge the spoke passenger--who must use 
     the hub to get to his or her destination--excessive monopoly 
     fares.
       The Illinois Department of Transportation--again 
     emphasizing the lack of capacity to handle both new 
     competition and service to smaller and mid-size communities--
     has stated the problem as follows:
       ``The dominant airlines are diminishing and even abandoning 
     service to smaller Illinois and Midwestern cities in favor of 
     routes that are more lucrative or that increase the power of 
     their hub networks.''
       Because the dominant O'Hare airlines prioritize the limited 
     capacity at O'Hare to service the flight operations with the 
     highest profitability, the small community ``spoke'' traveler 
     gets harmed on two levels. First, he loses service when the 
     cominant airlines cut small community service to use the 
     limited capacity to service more lucrative long-haul or 
     international traffic--eliminating less profitable small 
     community service. Second, as to the small community traffic 
     that the dominant airlines still service, they are able to 
     charge exorbitant rates--knowing that the small community 
     spoke traveler is at their mercy.
       6. The Big Seven's Fortress Hub Geographic Market 
     Allocation is a Per Se Violation of the Antitrust laws.
       Neither the Administration nor the Congress appears to have 
     critically examined a central question: Does the Big Seven's 
     Fortress Hub geographic market allocation violate the 
     Nation's antitrust laws? Based on clear and repeated Supreme 
     Court precedent, it clearly does.
       The major airlines general de facto geographic allocation 
     of major air travel markets in the nation through the 
     development of ``Fortress Hubs'' constitutes a per se 
     violation of the antitrust laws. The Supreme Court has 
     uniformly condemned arrangements to carve up horizontal 
     markets as per se violations of Section 1 of the Sherman Act. 
     See e.g., Palmer v. BRG Group of Georgia, 498 U.S. 46, 49 
     (1990); United States v. Topco Associates, Inc., 405 U.S. 
     596, 607-609 (1972).
       Virtually all laymen and most lawyers shy away from 
     antitrust law as an economic morass difficult to understand. 
     But there is one area where the United States Supreme Court 
     has been clear and unequivocal: horizontal arrangements to 
     carve up geographic markets are an automatic--a ``per se''--
     violation of the federal antitrust laws. Because this law is 
     so-clear and unambiguous--and recognizing that the airlines 
     will claim that the law can be ignored--we believe it 
     important to quote the United States Supreme Court on this 
     subject:
       ``While the Court has utilized the `rule of reason' in 
     evaluating the legality of most restraints alleged to be 
     violative of the Sherman Act, it has also developed the 
     doctrine that certain business relationships are per se 
     violations of the Act without regard to a consideration of 
     their reasonableness. In Northern Pacific R. Co. v. United 
     States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 
     (1958), Mr. Justice Black explained the appropriateness of, 
     and the need for, per se rules:''
       ```(T)here are certain agreements or practices which 
     because of their pernicious effect on competition and lack of 
     any redeeming virtue are conclusively presumed to be 
     unreasonable and therefore illegal without elaborate inquiry 
     as to the precise harm they have caused or the business 
     excuse for their use. This principle of per se 
     unreasonableness not only makes the type of restraints which 
     are prescribed by the Sherman Act more certain to the benefit 
     of everyone concerned, but it also avoids the necessity for 
     an incredibly complicated and prolonged economic 
     investigation into the entire history of the industry 
     involved, as well as related industries, in an effort to 
     determine at large whether a particular restraint has been 
     unreasonable--an inquiry so often wholly fruitless when 
     undertaken.'''
       ``It is only after considerable experience with certain 
     business relationships that courts classify them as per se 
     violations of the Sherman Act. See generally Van Cise, The 
     Future of Per Se in Antitrust Law, 50 Va.L.Rev. 1165 (1964). 
     One of the classic examples of a per se violation of Sec. 1 
     is an agreement between competitors at the same level of the 
     market structure to allocate territories in order to minimize 
     competition. Such concerted action is usually termed a 
     `horizontal' restraint, in contradistinction to combinations 
     of persons at different levels of the market structure, e.g., 
     manufacturers and distributors, which are termed `vertical' 
     restraints. The Court has reiterated time and time again that 
     `(h)orizontal territorial limitations . . . are naked 
     restraints of trade with no purpose except stifling of 
     competition.' White Motor Co. v. United States, 372 U.S. 253, 
     263, 83 S. Ct. 696, 702, 9 L.Ed.2d 738 (1963). Such 
     limitations are per se violations of the Sherman Act. See 
     Addyston Pipe & Steel Co. v. United States, 175 U.S. 211, 20 
     S.Ct. 44 L.Ed 136 (1989), aff'g 85 F. 271 (C.A.6 1898) (Taft, 
     J.); United States v. National Lead Co., 332 U.S. 319,67 
     S.Ct. 1634, 91 L.Ed. 2077 (1947); Timken Roller Bearing Co. 
     v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 
     (1951); Northern Pacific R. Co. v. United States, supra; 
     Citizen Publishing Co. v. United States, 394 U.S. 131, 89 
     S.Ct. 927, 22 L.Ed.2d 148 (1969); United States v. Sealy, 
     Inc., 388 U.S. 350, 87 S.Ct. 1847, 28 L.Ed.2d 1238 (1967); 
     United States v. Arnold, Schwinn & Co., 388 U.S. 365, 390, 87 
     S.Ct. 1856, 1871, 18 L.Ed.2d 1249 (1967) (Stewart, J., 
     concurring in part and dissenting in part); Serta Associates, 
     Inc. v. United States, 393 U.S. 534, 89 S.Ct. 870, 21 L.Ed.2d 
     753 (1969), aff'g 296 F.Supp. 1121, 1128 (N.D.Del.1968).'' 
     (United States v. Topco Associates, Inc., 405 U.S. at 607-608 
     (emphasis added))
       The Big Seven's carving up of geographic markets into the 
     current Fortress Hub system is nothing more than a naked 
     horizontal restraint repeatedly condemned by the Supreme 
     Court as a per se violation of the Sherman Act.
       Put in terms the average citizen understands--Could 
     McDonald's tell Burger King: We won't compete in Atlanta if 
     you won't compete in Chicago? Could Ford tell GM: We won't 
     sell Fords in Michigan if you won't sell 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.

[[Page 13977]]

       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 can be found in letters written by sixteen 
     Chief Executive Officers (CEOs) of the major airlines to 
     Illinois Governor Jim Edgar and his successor George Ryan. In 
     those letters--drafted in coordination with representatives 
     of the City of Chicago and the Air Transport Association--the 
     major airlines tell the Illinois Governor that they will 
     refuse to use the proposed new metropolitan Chicago airport:
       ``We are writing to express our concerns about further 
     planning and development of the so-called Third Chicago 
     Airport. It is our understanding that the State of Illinois 
     will not proceed with the construction of a third airport 
     without the support of the airlines. This letter is intended 
     to inform you that the airlines oppose further planning and 
     construction of this facility . . .''
       Chicago area news media have characterized the major 
     airlines' refusal to use a new airport as ``If you build it, 
     we won't come.'' In reality, this collective refusal to use a 
     new regional airport is nothing more than a manifestation of 
     the major airlines' horizontal market agreement not to 
     compete in any significant way with United and American in 
     their dominant Chicago market. This refusal by major airlines 
     such as Delta, Northwest, USAir, and Continental to use new 
     metropolitan Chicago airport capacity to compete in 
     metropolitan Chicago is but an individual example of the per 
     se antitrust violation of allocating geographic markets by 
     the major airlines.
       8. The Fortress Hub System and the Big Seven's Collective 
     Refusal to Compete in Each Other's Fortress Hub Markets--as 
     Illustrated by Their Collective Refusal to Use the New South 
     Suburban Airport--Represent Serious Violations of Federal 
     Law.
       These clear violations by the Big Seven airlines in 
     creating and maintaining the Fortress Hub system and the 
     refusal of the Big Seven to compete in each other's markets 
     represent serious violations of the antitrust laws. If the 
     GAO and IDOT estimates are accurate, nationally the Fortress 
     Hub system literally illegally steals several billion dollars 
     per year from the nation's air travelers--several hundred 
     million dollars in the Chicago area alone.
       Because these antitrust violations are so blatant, it is 
     important for the public to know the significant sanctions 
     and remedies available to cure these violations.
       Section 1 of the Sherman Act provides:
       Every contract, combination in the form of trust or 
     otherwise, or conspiracy, in restraint of trade or commerce 
     among the several States, or with foreign nations, is hereby 
     declared to be illegal. Every person who shall make any 
     contract or engage in any combination or conspiracy hereby 
     declared to be illegal shall be deemed guilty of a felony, 
     and, on conviction thereof, shall be punished by fine not 
     exceeding $10,000,000 if a corporation, or, if any other 
     person, $350,000, or by imprisonment not exceeding three 
     years, or by both said punishments, in the discretion of the 
     court. (Title 15 United States Code Sec. 1 (emphasis added))
       Section 2 of the Sherman Act provides:
       Every person who shall monopolize, or attempt to 
     monopolize, or combine or conspire with any other person or 
     persons, to monopolize any part of the trade or commerce 
     among the several States, or with foreign nations, shall be 
     deemed guilty of a felony, and, on conviction thereof, shall 
     be punished by fine not exceeding $10,000,000 if a 
     corporation, or, if any other person, $350,000, or by 
     imprisonment not exceeding three years, or by both said 
     punishments, in the discretion of the court. (Title 15 United 
     States Code Sec. 2 (emphasis added))
       Section 4 of the Act provides civil injunction remedies and 
     mandates the Department of Justice to ``institute proceedings 
     in equity to prevent and restrain such violations'':
       The several district courts of the United States are 
     invested with jurisdiction to prevent and restrain violations 
     of sections 1 to 7 of this title; and it shall be the duty of 
     the several United States attorneys, in their respective 
     districts, under the direction of the Attorney General, to 
     institute proceedings in equity to prevent and restrain such 
     violations. (Title 15 United States Sec. 4 (emphasis added))
       Section 15 provides that any person injured by the 
     violations of the antitrust laws can recover treble (triple) 
     damages for the monetary losses caused by the violations.
       [A]ny person who shall be injured in his business or 
     property by reason of anything forbidden in the antitrust 
     laws may sue therefore in any district court of the United 
     States in the district in which the defendant resides or is 
     found or has an agent, without respect to the amount in 
     controversy, and shall recover threefold the damages by him 
     sustained, and the cost of suit, including a reasonable 
     attorney's fee. (Title 15 United States Code Sec. 15)
       In summary, the statutory sanctions for these antitrust 
     violations are significant. Thus far, federal Department of 
     Justice officials have been unwilling to initiate antitrust 
     enforcement proceedings to break up the Fortress Hub monopoly 
     of the Big Seven.
       9. The Major Airlines Geographic Market Allocation--A Per 
     Se Violation of the Antitrust laws--Is Not Immunized by the 
     ``Noerr-Pennington'' Doctrine.
       The major airlines' have engaged in this de facto Fortress 
     Hub geographic market allocation scheme for more than a 
     decade. It is likely that the airlines will assert that their 
     collective refusal to compete in the metropolitan Chicago 
     market--and the manifestation of that refusal by their 
     letters to Governors Edgar and Ryan--is immunized from 
     antitrust law enforcement by the ``Noerr-Pennington'' 
     doctrine. That doctrine immunizes antitrust violations where 
     the principal vehicle for achieving the monopolistic goal is 
     political expression--i.e., lobbying government.
       But the post-Noerr-Pennington case law makes clear that 
     where a business arrangement--that otherwise violates the 
     antitrust laws--has one component that involves the exercise 
     of First Amendment speech, there is no immunity from 
     antitrust enforcement under the ``Noerr-Pennington'' 
     doctrine. See Allied Tube & Conduit Corp. v. Indian Head, 
     Inc., 486 U.S. 492, 505-506 (1988); FTC v. Superior Court 
     Trial Lawyers Ass'n, 493 U.S. 411, 423-426 (1990); Sandy 
     River Nursing Care v. Aetna Casualty, 985 F.2d 1138, 1142-43 
     (1st Cir. 1993); In re Brand Name Prescription Drugs 
     Antitrust Litigation, 186 F.3d 781, 788-789 (7th Cir. 1999).
       10. The Major Airlines Geographic Market Allocation--A Per 
     Se Violation of the Antitrust laws--Is Not Immunized by the 
     ``State Action Doctrine''.
       It is common for those accused of antitrust violations to 
     claim that their monopolistic practices are immunized from 
     antitrust liability under the so-called ``state action'' 
     doctrine of Parker v. Brown, 317 U.S. 341 (1943). The Supreme 
     Court's rationale in Parker for ``state action'' immunity was 
     the Congress had not intended in the Sherman Act to control 
     the activities of states in engaging in conduct directed by 
     the state legislature. 317 U.S. at 351-352.
       But the Supreme Court has severely limited the availability 
     of ``state action'' immunity when invoked by private parties 
     such as the airlines in an attempt to immunize conduct 
     clearly violative of the antitrust laws. The Supreme Court 
     has established two requirements for ``state action'' 
     immunity where private parties participate in the antitrust 
     violation: 1) the monopolistic activity must be clearly 
     expressed and affirmatively adopted as being the policy of 
     the State, and 2) the monopolistic activity must be actively 
     supervised by the State itself. Federal Trade Commission v. 
     Ticor Title Insurance Co, 504 U.S. 621, 633-634 (1992); 
     Patrick v. Burget, 486 U.S. 94, 101-102 (1988); California 
     Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 
     U.S. 97, 105-106 (1980).
       In the case of Fortress O'Hare and the collective campaign 
     of United, American and Chicago to keep significant new hub-
     and-spoke competition from coming into the metro Chicago 
     market, there is no question that the ``state action'' 
     defense does not apply. First, the State of Illinois has not 
     authorized the Fortress O'Hare monopoly maintained by United 
     and American and has actively spoken out against the monopoly 
     problem there. Second, the State is not actively supervising 
     and approving the anti-competitive conduct by United and 
     United and American and Chicago.
       11. Federal Taxpayer Funds May Have Been Used to Suppress 
     Competition and Violate the Antitrust Laws in the Chicago 
     Market.
       As stated above, other major airlines through the (ATA), 
     United and American (the dominant carriers at O'Hare) have 
     engaged in a concerted effort to defeat construction of a new 
     South Suburban Airport, an airport that would provide 
     significant capacity opportunities for major new competition 
     to enter the Chicago market. United executives have privately 
     stated their goal as ``Kill Peotone''.
       United and American have been assisted in their ``Kill 
     Peotone'' (and thus kill new competitive capacity) campaign 
     by representatives of the City of Chicago--including 
     Chicago's consultants. Chicago's consultants have been paid 
     several million dollars in consulting fees to assist Chicago 
     and United and American in expanding O'Hare and in 
     obstructing development of a new South Suburban Airport.
       Much of the money paid to these consultants has come from 
     either: (1) federal Passenger Facility Charge (PFC) funds (2) 
     federal Airport Improvement Program (AIP)

[[Page 13978]]

     funds, or (3) federal tax subsidies 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 were 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--illustrates a 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 airports--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 American--
     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 to push 400-500 new flights per day into O'Hare 
     is going to lead to: (1) massive increases in delays and (2) 
     widespread cancellations. FAA (USDOT) A Study of the High 
     Density Rule illustrates the massive delay increase that 
     adding just a few flights at O'Hare beyond the slot limits 
     will do to all passengers at O'Hare. This analysis shows that 
     adding 400-500 flights per day will lead to disastrous delays 
     for all passengers--more than doubling the delays for all 
     passengers, not just those who are on the new additional 
     flights.
       We anticipate that FAA and United and American will claim 
     that the delay and capacity results of DOT in 1995 have been 
     changed because of capacity improvements at O'Hare in 
     intervening years. But if so, a few questions need answering. 
     What are the capacity improvements since 1995? How much new 
     capacity has been provided? What will be the capacity/delay 
     numbers (comparable to DOT's 1995 analysis) with the new 
     capacity? Why were there no public hearings and environmental 
     disclosure on these capacity improvements?
       We suspect the answer is that there have not been any 
     capacity changes at O'Hare since 1995 and DOT's numbers 
     remain valid. Conversely, if there have been capacity 
     changes, FAA has failed to inform both affected elected 
     officials (e.g., Congressman Hyde and Senator Fitzgerald) and 
     they have failed to tell the public and give the public an 
     opportunity to be heard.
       There is another important point to emphasize about this 
     throughput/delay relationship shown on the FAA charts. Where 
     the airport is at the limits of acceptable delays--i.e., the 
     practical capacity limit--very small shifts in either traffic 
     demand or capacity can dramatically increase delays for all 
     passengers. Thus a small increase in traffic demand beyond 
     the practical capacity limit will generate huge increases in 
     delays for all passengers. Similarly, a slight decrease in 
     capacity--such as experienced this past year when regional 
     jet pilots were refusing Land-And-Hold-Short for safety 
     reasons--can dramatically increase delays with little or no 
     increase in throughput. The point here is that O'Hare is 
     already at the breaking point--brought there by the 
     resistance of Chicago and the Fortress Hub airlines at O'Hare 
     (United and American) to the building of a new regional 
     airport. O'Hare cannot handle 400-500 new flights per day and 
     United and American know it. Their own SIMMOD analysis tells 
     them that.
       Why then do United and American announce a literally 
     foolhardy plan to jam 400-500 flights into O'Hare--an 
     announcement made the same day that United's and American's 
     front organization (the Civic Committee) calls for a new 
     runway at O'Hare? By deliberately creating chaos at O'Hare, 
     United and American will then be able to say that delays are 
     at crisis levels and we must immediately build a new runway 
     at O'Hare.
       B. The ``Point-To-Point'' Shell Game: Building the South 
     Suburban Airport as a ``Point-To-Point'' Airport Will Not 
     Break the Hub-And-Spoke Monopoly of Fortress O'Hare.
       The heart of the monopoly overcharges to travelers in the 
     Chicago market is the absence of competition in the hub-and-
     spoke

[[Page 13979]]

     market in Chicago. None of the other Big Seven will come into 
     the Chicago market to establish a competitive hub-and-spoke 
     operation.
       United and American propose using close to 10 billion 
     dollars (much of it in federal funds) to expand United and 
     American's hub-and-spoke empire at Fortress O'Hare. In an 
     attempt to expand their monopoly and prevent new competition 
     from entering the Chicago market, United and American (along 
     with the ``Civic Committee'' and the Chicagoland Chamber) 
     have sought to distract attention by suggesting a south 
     suburban airport in Chicago as a ``point-to-point'' airport--
     not unlike Midway. United and American argues that O'Hare 
     should be the only ``hub-and-spoke'' airport in metropolitan 
     Chicago.
       By shaping the argument in this fashion, United and 
     American guarantee that they will be allowed to continue and 
     dramatically expand their Fortress Hub monopoly at O'Hare. 
     According to their arguments, the lion's share of all the 
     origin-destination traffic in the region--and all of the 
     connecting and international traffic--should go to the sole 
     hub-and-spoke airport in the region: O'Hare. Any minor 
     overflow of ``point-to-point'' origin-destination traffic 
     that Midway could not handle could be addressed in a small 
     ``point-to-point'' airport like the South Suburban Airport or 
     Gary.
       What United and American gloss over is the fact there is 
     plenty of competition in the Chicago market in point-to-point 
     service. The real lack of competition in the Chicago market 
     is in the lack of additional hub-and-spoke competition to 
     challenge the hub-and-spoke duopoly of United and American at 
     Fortress O'Hare. It is this market dominance of the hub-and-
     spoke market--not the point-to-point--where lack of 
     competition gouges the business traveler and the traveler 
     from ``spoke'' cities. There is a desperate need for new 
     competitive hub-and-spoke service in the Chicago market and 
     the place to put that hub-and-spoke is the new South Suburban 
     Airport.
       No federal administration officials appear to be examining 
     whether spending 10 billion dollars (much of it from federal 
     taxpayers) at O'Hare makes economic sense when much more new 
     capacity to support competitive hub-and-spoke operations can 
     be constructed at a new metropolitan airport for less than 
     half the cost. Nor are federal officials examining whether 
     the use of billions of dollars of federal taxpayer funds to 
     expand United and American's hub-and-spoke duopoly at 
     Fortress O'Hare--essentially using billions of dollars of 
     federal taxpayer funds to subsidize expansion of monopoly 
     power--is proper use of federal funds.
       C. A New Runway at O'Hare is Intended to Increase Capacity 
     to Expand United and American's Monopoly Power.
       As discussed above, the airlines' current public relations 
     argument is that the lion's share of all the origin-
     destination traffic in the region (and all of the connecting 
     and international traffic) should go to the sole hub-and-
     spoke airport in the region (O'Hare). Any minor overflow of 
     point-to-point origin-destination traffic that a dramatically 
     expanded O'Hare and Midway could not handle (if any) could be 
     addressed in a small point-to-point airport like the South 
     Suburban Airport or Gary.
       Paralleling this argument is the claim by the airlines 
     allies that a new runway at O'Hare is needed to ``reduce 
     delays''. They claim that a new runway would not increase 
     O'Hare capacity but simply reduce delays.
       Yet an analysis using FAA's own capacity analysis standards 
     and criteria demonstrates that a new runway at O'Hare would 
     substantially increase the capacity of the airport. As 
     discussed above, the concepts of capacity and delay are 
     closely interrelated. The FAA and Chicago both define 
     capacity as that level of aircraft operations that can be 
     processed at an airport at an acceptable level of delay.
       The FAA's published graphic showing the relationship of 
     capacity and delay illustrates a how a so-called ``delay 
     reduction'' at one level of traffic results in an increase in 
     capacity at the airport to accommodate additional levels of 
     traffic.
       This capacity increase at O'Hare--by building a runway to 
     ``reduce delay''--would dramatically expand American's and 
     United's hub-and-spoke monopoly at Fortress O'Hare. Further, 
     it would virtually doom the economic justification for the 
     new south suburban airport because the new ``delay'' runway--
     once built--could easily be used to carry the new additional 
     traffic for which the new airport was intended. Simply by 
     piecemealing incremental expansion at O'Hare, Chicago and 
     American and United can keep the region under the thumb of 
     the Fortress O'Hare monopoly.
       14. United's and American's Fight to Preserve and Expand 
     Fortress Hub Monopoly Power at O'Hare has Grave Social, 
     Economic, Public Health, and Quality of Life Consequences for 
     the Region.
       In their passion to expand Fortress O'Hare and defeat the 
     prospect of new hub-and-spoke competition coming into a new 
     airport, United and American have disregarded safety, public 
     health, and quality of life for the communities around 
     O'Hare. All parties are in agreement that growth in air 
     traffic should be accommodated with major increases in new 
     airport capacity in the metropolitan Chicago region.
       The choices are stark: (1) a new regional airport which 
     will have an environmental land buffer three times the size 
     of O'Hare and plenty of capacity to accommodate new hub-and-
     spoke competition or (2) an overstuffed O'Hare with no land 
     buffer and continued dominance of the metropolitan hub-and-
     spoke market by United and American. But for the addiction to 
     monopoly revenues at Fortress O'Hare, the decision is 
     simple--send the traffic growth to a new environmentally 
     sound, competitively open new regional airport.
       Instead we have United and American and their political 
     surrogates urging more air pollution, more noise, and more 
     safety hazards be imposed on O'Hare area communities--simply 
     to protect and expand the Fortress O'Hare monopoly. We now 
     live in a bizarre world where the desire to protect and 
     expand violations of antitrust law and illegal overcharges 
     trumps protection of public health, safety and quality of 
     life.
       The consequences of these abuses of monopoly power for the 
     metro Chicago region are stark and severe:
       O'Hare area communities will be subjected to more noise, 
     more air pollution, and more safety hazards because--under 
     the United, American, and Chicago proposal--all the 
     international, all the transfer traffic, and the lion's share 
     of the origin-destination traffic are jammed into an already 
     overstuffed O'Hare. Any new airport--even if built--will 
     simply receive the origin-destination overflow (if any) from 
     a vastly expanded O'Hare and Midway.
       South Chicago and south suburban communities will continue 
     to suffer serious economic decline because the South Suburban 
     Airport--which should have been built years ago--lies hostage 
     to the unholy alliance struck between the monopoly interest 
     of United and American and the political pique of Chicago's 
     mayor. Residents of South and South Suburban Chicago 
     legitimately ask why United and American oppose the hundreds 
     of thousands of jobs and billions in economic benefits that 
     would accrue to this area if the new airport is built. Some 
     attribute United and American's position to racial intent. 
     More accurately, United and American are willing to ignore 
     the severe economic harm their monopolistic position inflicts 
     on an area with a significant African-American population if 
     that harm is a necessary consequence of preserving and 
     expanding their monopoly at Fortress O'Hare. In a world of 
     pure economic rationality, monopoly power and the social and 
     economic injustices incident to that monopoly power might be 
     excused as central to the maximization of profit. However, in 
     a world of law and justice--where political leaders must 
     account for their failure to correct these abuses--such 
     destructive monopoly power should not be tolerated.


                            recommendations

       Based on the facts and the antitrust law analysis contained 
     in this report, the Suburban O'Hare Commission recommends the 
     following actions:
       The United States Attorney General and the United States 
     Attorney for the Northern District of Illinois should 
     initiate an investigation into the collective refusal of the 
     Big Seven airlines to compete against each other in each 
     other's Fortress Hub Markets. Included in the investigation 
     should be an examination of the role of third party 
     collaborators in the antitrust violations--including the City 
     of Chicago and other private organizations and individuals 
     who have assisted the Big Seven (including United and 
     American) in perpetrating these violations. Because of the 
     involvement by federal officials in affirmatively assisting 
     the Big Seven and the City of Chicago in keeping significant 
     competition out of Chicago, the Attorney General should be 
     asked to consider the appointment of independent counsel.
       The United States Attorney General and the United States 
     Attorney should bring a civil action in federal court to 
     enjoin and break up the illegal Fortress Hub geographic 
     market allocation by the Big Seven and prohibit the 
     collective refusal by the Big Seven to compete in each 
     other's Fortress Hub markets. Included in the relief should 
     be a requirement that members of the Big Seven halt their 
     collective refusal to use a new South Suburban Airport in 
     metropolitan Chicago and a requirement that competitive hub-
     and-spoke operations be established in metro Chicago to 
     compete with United and American.
       The State Attorneys General should initiate civil damage 
     actions to recover treble damages for the billions of dollars 
     per year in excess monopoly profits in airfare overcharges 
     that have been charged at the Big Seven's Fortress Hubs. The 
     Illinois Attorney General should bring suit to recover treble 
     damages for the hundreds of millions of dollars in monopoly 
     overcharges by American and United at Fortress O'Hare. On a 
     multiple year basis in Illinois alone, the treble damages 
     recoverable for consumers would exceed several billion 
     dollars.
       The GAO and the Department of Justice should undertake an 
     immediate and detailed audit of all federal funds that may 
     have been used to further the refusal of the other members of 
     the Big Seven to compete with United

[[Page 13980]]

     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.
       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

[[Page 13981]]

     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 public 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 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.
                                  ____


                       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

[[Page 13982]]

     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 
     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

[[Page 13983]]

     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 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

[[Page 13984]]

     (``bill''). These provisions are examined and analyzed in the 
     following memorandum.
       The bill contains various provisions relating to the 
     expansion of aviation capacity in the Chicago area. Among the 
     provisions contained in the bill are provisions relating to 
     O'Hare International Airport (``O'Hare''), Meigs Field, a 
     proposed new carrier airport located near Peotone, Illinois 
     (``Peotone''), and other projects. Your office has expressed 
     repeated concern that the news media and various commentators 
     have reported that the bill would apparently implement the 
     various projects in a similar manner and that similar 
     legislative language is used to implement the various 
     projects. The news articles that you have cited concerning 
     the bill tend to report the various elements of the bill 
     without distinguishing the bill language and the differences 
     as to the means in which the various projects may be 
     implemented.


                                analysis

       The chief purpose of the bill it so expand aviation 
     capacity in the Chicago area, through a variety of means. 
     Section 3 of the bill deals with airport redesign and other 
     issues. Your staff has focused upon the interpretation and 
     the bill language of two particular subsections--(e) and 
     (f)--of Section 3, which are considered below.
       ``(e) South Suburban Airport Federal Funding.--The 
     Administrator shall give priority consideration to a letter 
     of intent application submitted by the State of Illinois or a 
     political Subdivision thereof for the construction of the 
     south suburban airport. The Administrator shall consider the 
     letter not later than 90 days after the Administrator issues 
     final approval of the airport layout plan for the south 
     suburban airport.''

     If enacted, this bill language would relate to the federal 
     funding for the proposed airport to be constructed at 
     Peotone. The ``Administrator'' refers to the Administrator of 
     the Federal Aviation Administration. The Administrator is 
     directed to give priority consideration to a letter of intent 
     application (``application'') submitted by Illinois, or a 
     political subdivision for the construction of the ``south 
     suburban airport'' the proposed airport at Peotone.
       The Administrator is given specific directions concerning 
     the application and for the time consideration of the 
     application. Concern has been expressed that the 
     Administrator is given certain duties and directions, but 
     that there is no specific language to ensure and/or to compel 
     that the Administrator will comply with the Congressional 
     mandate, if the Administrator does not choose to follow the 
     Congressional direction. Congress possesses inherent 
     authority to oversee the project, as well as the 
     Administrator's compliance with the statutory requirements, 
     by way of its oversight and appropriations functions. 
     Congress and congressional committees have virtually plenary 
     authority to elicit information which is necessary to carry 
     out their legislative functions from executive agencies, 
     private persons, and organizations. Various decisions of the 
     Supreme Court have established that the oversight and 
     investigatory power of Congress is an inherent part of the 
     legislative function and is implied from the general vesting 
     of the legislative power of Congress. Thus, courts have held 
     that Congress' constitutional authority to enact legislation 
     and appropriate money inherently vests it with power to 
     engage in continuous oversight. The Supreme Court has 
     described the scope of this power of inquiry as to be ``as 
     penetrating and far-reaching as the potential power to enact 
     and appropriate under the Constitution.''
       Specific interest is focused on the language ``shall 
     consider'' used in the second sentence of the subsection. In 
     the context of this subsection, it should not necessarily be 
     considered to mean the implementation of an accelerated 
     approval/construction process for the airport. While these 
     events may occur, such a course of action is not specifically 
     provided by the legislation.
       Your staff has also focused on subsection (f), dealing with 
     the proposed federal construction at O'Hare. The bill 
     provides:
       ``(f) Federal Construction.--
       (1) On July 1, 2004, or as soon as practicable thereafter, 
     the Administrator shall construct the runway redesign plan as 
     a Federal project, if--
       (A) the Administrator finds, after notice and opportunity 
     for public comment, that a continuous course of construction 
     of the runway design plan has not commenced and is not 
     reasonably expected to commence by December 2, 2004;
       (B) Chicago agrees in writing to construction of the runway 
     redesign plan as a Federal project without cost to the United 
     States, except such funds as may be authorized under chapter 
     471 of title 49, United States Code, under authority of 
     paragraph (4);
       (C) Chicago enters into an agreement, acceptable to the 
     Administrator, to protect the interests of the United States 
     Government with respect to the construction, operation, and 
     maintenance of the runway redesign plan;
       (D) the agreement with Chicago, at a minimum provides for 
     Chicago to take over ownership and operations control of each 
     element of the runway redesign plan upon completion of 
     construction of such element by the Administrator;
       (E) Chicago provides, without cost to the United States 
     Government (except such funds as may be authorized under 
     chapter 471 of title 49, United States Code, under the 
     authority of paragraph (4)), land easements, rights-of-way, 
     rights of entry, and other interests in land or property 
     necessary to permit construction of the runway redesign plan 
     as a Federal project and to protect the interests of the 
     United States Government in its construction, operation, 
     maintenance, and use; and
       (F) the Administrator is satisfied that the costs of the 
     runway redesign plan will be paid from sources normally used 
     for airport development projects of similar kind and scope.
       (2) The Administrator may make an agreement with the City 
     of Chicago under which Chicago will provide the work 
     described in paragraph (1), for the benefit of the 
     Administrator.
       (3) The Administrator is authorized and directed to acquire 
     in the name of the United States all land, easements, rights-
     of-way, rights of entry, or other interests in land or 
     property necessary for the runway redesign plan under this 
     section, subject to such terms and conditions as the 
     Administrator deems necessary to protect the interests of the 
     United States.
       (4) Chicago shall be deemed the owner and operator of each 
     element of the runway reconfiguration plan under section 
     40117 and chapter 471 of title 49, United States Code, 
     notwithstanding any other provision of this section or any of 
     the provisions in such title referred to in this 
     subsection.''
       The Administrator is directed to construct the O'Hare 
     runway plan as a Federal project if certain conditions are 
     met: (1) construction of the runway design plan has not begun 
     and is not expected to begin by December 1, 2004; (2) Chicago 
     agrees to the runway plan as a Federal project without cost 
     to the United States, with certain exceptions; (3) Chicago 
     enters into an agreement to protect Federal Government 
     interests concerning construction, operation, and maintenance 
     of the runway project; (4) the agreement provides that 
     Chicago take over the ownership and operation control of each 
     element of the runway design plan upon its completion; (5) 
     Chicago provides, without cost, the land, easements, right-
     of-way, rights of entry, and other interests in land/property 
     as are required to allow the construction of the runway plan 
     as a Federal project and to protect the interests of the 
     Federal Government in its construction, operation, 
     maintenance, and use; and (6) the Administrator is satisfied 
     that the redesign plan costs will be paid from the usual 
     sources used for airport development projects of similar kind 
     and scope.
       Paragraph 2 provides that the Administrator ``may'' make an 
     agreement with Chicago, whereby Chicago will provide the work 
     described above in paragraph (1) for the benefit of the 
     Administrator. It should be noted that the use of the word 
     ``may'' would appear to make this language optional, and 
     would not necessarily require the Administrator to enter into 
     such agreement with Chicago.
       Paragraph 3 authorizes and directs the Administrator to 
     acquire in the name of the Federal Government those property 
     interests needed for the redesign plan, subject to the terms 
     and conditions that the Administrator feels are necessary to 
     protect the interests of the United States.
       Paragraph 4 provides that Chicago will be deemed to be the 
     owner and operator of each element of the runway 
     reconfiguration plan, notwithstanding any other provision of 
     this section.
       Discussion has focused on the different legislative 
     language used in subsection (e) and (f). Subsection (f) 
     specifically states that the Administrator ``shall 
     construct'' the runway redesign plan; however, there is no 
     parallel language regarding the construction of the south 
     suburban airport in subsection (e). The provisions of the 
     subsections appear to be independent of each other and 
     provide very different directions to the Administrator, 
     Hence, it may be interpreted that subsection (f) would 
     authorize runway construction (if certain conditions are 
     met), and subsection (e) is concerned primarily with the 
     review and the consideration of an airport construction plan.
       It is possible that the Administrator's actions concerning 
     the implementation of this legislation, if enacted, may be 
     subject to judicial review. Judicial review of agency 
     activity or inactivity provides control over administrative 
     behavior. Judicial review of agency action/inaction may 
     provide appropriate relief for a party who is injured by the 
     agency's action/inaction. The Administrative Procedure Act 
     (``APA'') provides general guidelines for determining the 
     proper court in which to seek relief. Some statutes provide 
     specific review proceedings for agency actions. Subsection 
     (h) of the bill provides for judicial review of an order 
     issued by the Administrator. The bill provides that the bill 
     may be reviewed pursuant to the provisions contained at 49 
     U.S.C. Sec. 46110.
       If the Administrator does not issue an order and judicial 
     review is not possible under this provision, then it is 
     possible that ``nonstatutory review'' may occur. When 
     Congress has not created a special statutory procedure for 
     judicial review, an injured party may seek ``nonstatutory 
     review.'' This

[[Page 13985]]

     review is based upon some statutory grant of subject matter 
     jurisdiction. Therefore, a party who wants to invoke 
     nonstatutory review will look to the general grants of 
     original jurisdiction that apply to the federal courts. It is 
     possible that an available basis for jurisdiction in this 
     case--if the Administrator does not carry out his/her 
     Congressional mandate--may be under the general federal 
     question jurisdiction statute which authorizes the federal 
     district courts to entertain any case ``arising under'' the 
     Constitution or the laws of the United States. An action for 
     relief under this provision is usually the most direct way to 
     obtain nonstatutory review of an agency action. Hence, it is 
     possible that an action could be brought under this statute 
     to compel the Administrator to comply with the provisions 
     contained in the bill.


                               conclusion

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


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

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


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

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

[[Page 13986]]

     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.

[[Page 13987]]

 
Toxic Air Pollution. Daley-Ryan O'Hare   There will be significantly
 plan makes no mention of toxic air       more toxic air pollution at
 pollution yet Ryan as Governor said      1,600,000 operations than at
 O'Hare should not be expanded because    900,000 operations.
 of toxic air pollution problem.
Benefit-Cost Analysis. Daley-Ryan        Reality is that benefits of
 O'Hare plan says it meets federal        Daley-Ryan O'Hare plan may not
 benefit-cost analysis requirements--     exceed the huge costs. It is
 including requirement that federal       also clear that placing the
 government chose the alternative that    new capacity at the new South
 produces greatest net benefits.          Suburban Airport rather than
                                          an expanded O'Hare produces
                                          far grater economic benefits
                                          at far less cost than the
                                          Daley-Ryan O'Hare plan.
Increased Safety Hazards. Daley and      Daley-Ryan O'Hare plan creates
 Ryan say their plan is safe.             major safety hazards,
                                          including: increase in traffic
                                          incursions (collision risk),
                                          destruction of safest runways
                                          for bad weather winter storm
                                          conditions (14/32s), high
                                          congestion in O'Hare area air
                                          space, risky runway protection
                                          (crash zones) in occupied
                                          areas.
Compliance With State Law. Daley and     Daley and Ryan both know that
 Ryan say that their plan complies with   they (not some future
 state law and that they are seeking      governor) have both violated
 federal preemption of state law only     state law by failing to meet
 to prevent upsetting Daley-Ryan deal     the requirements of the
 by a future governor.                    Illinois Aeronautics Act;
                                          purpose of bill is to immunize
                                          this illegality.
$15 Billion into the O'Hare Money Pit:   Putting $15 or more billion
 Problems of Corruption in Management     dollars into the corrupt
 of O'Hare. Daley and Ryan make no        contract management system
 mention of the history of rampant        that infects Chicago public
 corruption and kickbacks to Daley        works awards--especially at
 friends and cronies in O'Hare            O'Hare, is pouring public
 contracts or the need for safeguards     resources into a cesspool. The
 and reforms to insure the integrity of   First Commandment of Chicago
 the process.                             O'Hare contracts is that the
                                          contractor has to hire one of
                                          Daley's friends or political
                                          associates on contract awards.
Economic Equity and Justice for the      Daley-Ryan O'Hare plan calls
 South Side and South Suburbs. Daley-     for putting virtually all of
 Ryan O'Hare plan offers little but       the economic growth of
 empty rhetoric for Peotone and south     aviation demand at O'Hare--
 suburban economic development.           leaving South Side and South
                                          Suburbs either empty promises,
                                          or a white elephant token
                                          airport.
------------------------------------------------------------------------

                       Grave Concerns Near O'Hare

                         (By Robert C. Herguth)

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

                                                Rosemary Mulligan,


                           State Representative 55th District,

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

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

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

[[Page 13988]]


       2. Thorough environmental studies are being blocked. There 
     are many documented health concerns related to current 
     pollution levels. 800,000 additional flights will nearly 
     double the environmental hazard.
       3. The State of Illinois' rights are being trampled. The 
     House of Representatives vote is setting a precedent that may 
     impact your home state at some later date.
       4. The safety of this plan has been questioned, 
     particularly with its inadequate FAA Safety Zones. The lack 
     of land does not allow for significant changes. It 
     jeopardizes surrounding schools, homes and businesses.
       5. No matter what configuration or expansion moves forward, 
     O'Hare's Midwest location means it will always be impacted by 
     weather from many directions.
       6. Proponents claim a 79 percent decline in delays with 
     reconfiguration of runways. However, when the increase of 
     800,000 flights is factored in, delays will increase to above 
     their current levels.
       Notwithstanding the economic benefits proponents subscribe 
     to this project, the responsibility of elected officials must 
     be first to the health, welfare and public safety of the 
     people we represent.
       Lastly, there exists a glaring discrepancy between the 
     legislation before you and what has been told to Illinoisans. 
     A simpler answer to all of the O'Hare congestion problems 
     exists in the development of a third regional airport. The 
     legislation has downgraded the priority of this solution and 
     will further delay any true relief for our nation's 
     transportation woes. This fact is omitted from news reports 
     and official proponent propaganda.
       With all due respect, I ask that you vote ``no'' on HR 
     3479. Let this remain a state's rights issue. Please feel 
     free to contact me anytime if you have any questions at (847) 
     297-6533. Thank you for your time.
           Respectfully,
                                                Rosemary Mulligan,
     Illinois State Representative, 55th District.
                                  ____

                     National Air Traffic Controllers Association,


                                         Chicago O'Hare Tower,

                                   Chicago, IL, November 30, 2001.
     Hon. Peter Fitzgerald,
     U.S. Senate, Washington, DC.
       Senator Fitzgerald, As requested from your staff, I have 
     summarized the most obvious concerns that air traffic 
     controllers at O'Hare have with the new runway plans being 
     considered by Mayor Daley and Governor Ryan. They are listed 
     below along with some other comments.
       1. The Daley and Ryan plans both have a set of east/west 
     parallel runways directly north of the terminal and in close 
     proximity to one another. Because of their proximity to each 
     other (1200') they cannot be used simultaneously for 
     arrivals. They can only be used simultaneously if one is used 
     for departures and the other is used for arrivals, but only 
     during VFR (visual flight rules), or good weather conditions. 
     During IFR (instrument flight rules, ceiling below 1000' and 
     visibility less than 3 miles) these runways cannot be used 
     simultaneously at all. They basically must be operated at one 
     runway for safety reasons. The same is true for the set of 
     parallels directly south of the terminal; they too are only 
     1200' apart.
       2. Both sets of parallel runways closest to the terminal 
     (the ones referred to above) are all a minimum of 10,000' 
     long. This creates a runway incursion problem, which is a 
     very serious safety issue. Because of their length and 
     position, all aircraft that land or depart O'Hare would be 
     required to taxi across either one, or in some cases two 
     runways to get to and from the terminal. This design flaw 
     exists in both the Daley and the Ryan plan. A runway 
     incursion is when an aircraft accidentally crosses a runway 
     when another aircraft is landing or departing. They are 
     caused by either a mistake or mis-understanding by the pilot 
     or controller. Runway incursions have skyrocketed over the 
     past few years and are on the NTSB's most wanted list of 
     safety issues that need to be addressed. Parallel runway 
     layouts create the potential for runway incursions; in fact 
     the FAA publishes a pamphlet for airport designers and 
     planners that urge them to avoid parallel runway layouts that 
     force taxiing aircraft to cross active runways. Los Angeles 
     International airport has lead the nation in runway 
     incursions for several years. A large part of that incursion 
     problem is the parallel runway layout; aircraft must taxi 
     across runways to get to and from the terminals.
       3. The major difference in Governor Ryan's counter proposal 
     is the elimination of the southern most runway. If this 
     runway were eliminated, the capacity of the new airport would 
     be less than we have now during certain conditions (estimated 
     at about 40% of the time). If you look at Mayor Daley's plan, 
     it calls for six parallel east-west runways and two parallel 
     northeast-southwest runways. The northeast-southwest 
     parallels are left over from the current O'Hare layout. These 
     two runways simply won't be usable in day-to-day operations 
     because of the location of them (they are wedged in between, 
     or pointed at the other parallels). We would not use these 
     runways except when the wind was very strong (35 knots or 
     above) which we estimate would be less than 1% of the time. 
     That leaves the six east/west parallels for use in normal 
     day-to-day operations. This is the same number of runways 
     available and used at O'Hare today. If you remove the 
     southern runway (Governor Ryan's counter proposal), you are 
     leaving us five runways which is one less than we have now. 
     That means less capacity than today's O'Hare during certain 
     weather conditions. With good weather, you may get about the 
     same capacity we have now. If this is the case, then why 
     build it?
       4. The Daley-Ryan plans call for the removal of the NW/SE 
     parallels (Runways 32L and 32R). This is a concern because 
     during the winter it is common to have strong winds out of 
     the northwest with snow, cold temperatures and icy 
     conditions. During these times, it is critical to have 
     runways that point as close as possible into the wind. 
     Headwinds mean slower landing speeds for aircraft, and they 
     allow for the airplane to decelerate quicker after landing 
     which is important when landing on an icy runway. Landing 
     into headwinds makes it much easier for the pilot to control 
     the aircraft as well. Without these runways, pilots would 
     have to land on icy conditions during strong cross-wind 
     conditions. This is a possible safety issue.
       These are the four major concerns we have with the Daley-
     Ryan runway plans. There are many more minor issues that must 
     be addressed. Amongst them are taxiway layouts, clear zones 
     (areas off the ends of each runway required to be clear of 
     obstructions), ILS critical areas (similar to clear zones, 
     but for navigation purposes), airspace issues (how arrivals 
     and departures will be funneled into these new runways) and 
     all sorts of other procedural type issues. These kinds of 
     things all have to go through various parts of the FAA 
     (flight standards, airport certification etc.) eventually. 
     These groups should have been involved with the planning 
     portion from day one. Air traffic controllers at the tower 
     are well versed on what works well with the current airport 
     and what does not. We can provide the best advice on what 
     needs to be accomplished to increase capacity while 
     maintaining safety. It is truly amazing that these groups 
     were not consulted in the planning of a new O'Hare. The 
     current Daley-Ryan runway plans, if built as publicized, will 
     do little for capacity and/or will create serious safety 
     issues. This simply cannot happen. The fear is that the 
     airport will be built, without our input, and then handed to 
     us with expectations that we find a way to make it work. When 
     it doesn't, the federal government (the FAA and the 
     controllers) will be blamed for safety and delay problems.
           Sincerely,
                                                    Craig Burzych,
     Facility Representative, NATCA-O'Hare Tower.
                                  ____



                                     House of Representatives,

                                 Washington, DC, January 31, 2001.
     Re Key Points Why The Chicago Region Needs A New Airport--And 
         Why New O'Hare Runways Are Contrary To The Region and 
         Nation's Best Interests.

     Hon. Andrew H. Card,
     Chief of Staff to the President,
     The White House, Washington, DC.
       Dear Andy: A matter of great importance to us is the need 
     for safe airport capacity expansion in the metro Chicago 
     region. At your earliest convenience, we would like to 
     schedule a meeting with you and Secretary Mineta to discuss 
     the situation. Enclosed is a detailed memorandum summarizing 
     our views. We are convinced that we must build a new regional 
     airport now and, for the same reasons, we believe that 
     construction of one or more new runways at O'Hare would be 
     harmful to the public health, economy and environment of the 
     region.
       As set forth in that memorandum:
       Most responsible observers agree that the Chicago region 
     needs major new runway capacity now.
       The question is where to build that new runway capacity--1) 
     at a new regional airport, 2) at O'Hare, 3) at Midway, or 4) 
     a combination of all of the above. An assessment of these 
     alternatives reaches the following conclusions:
       1. The new runways can be built faster at a new airport as 
     opposed to O'Hare or Midway.
       2. More new runway capacity can be built at a new site than 
     at O'Hare or Midway.
       3. The new runways can be built at far less cost at a new 
     airport than at O'Hare or Midway.
       4. Construction of the new capacity at a new airport will 
     have far less impact on the environment and public health 
     than would expansion of either Midway or O'Hare.
       5. Construction of the new capacity at a new airport offers 
     the best opportunity to bring major new competition into the 
     region.
       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

[[Page 13989]]

     Chicago region, open the region to major new competition, and 
     accomplish these objectives in a low-cost, environmentally 
     sound manner.
       Again, we would appreciate the opportunity to discuss these 
     matters with you and Secretary Mineta at your earliest 
     convenience.
           Very truly yours,
     Henry Hyde,
     Jesse Jackson, Jr.
                                  ____

     To: White House Chief of Staff Andrew Card.
     From: Congressman Henry Hyde, Congressman Jesse Jackson, Jr.
     Re: Key Points Why Chicago Region Needs A New Airport--And 
         Why New O'Hare Runways Are Contrary To The Region and 
         Nation's Aviation Best Interests
     Date: January 31, 2001.
       This memorandum summarizes our views in the debate over the 
     need for airport capacity expansion in the metro Chicago 
     region. For the reasons set forth herein, we are convinced 
     that we must build a new regional airport now and, for the 
     same reasons, believe that construction of one or more new 
     runways at O'Hare would be harmful to the public health, 
     economy and environment of the region.
       The debate can best be summarized in a simple question and 
     answer format.
       Does the Region need new runway capacity now? Unlike The 
     City of Chicago--which has for more than a decade privately 
     known that the region needs new runway capacity while 
     publicly proclaiming that new runway capacity is not needed--
     bipartisan leaders like Jesse Jackson, Jr. and myself have 
     openly acknowledged the need for, and urged the construction 
     of, new runway capacity in the region.
       The need for new runway capacity is not a distant 
     phenomenon; we should have had new runway capacity built 
     several years ago. While 20 year growth projections of air 
     travel demand show that the harm caused by this failure to 
     build capacity will only get worse, the available information 
     suggests that the region has already suffered serious 
     economic harm for several years because of our past failure 
     to build the new runway capacity.
       If the answer to the runway question is yes--and we believe 
     it is--the next question is where to build the new runway 
     capacity? Though the issue has been discussed, the media, 
     Chicago and the airlines have failed to openly discuss the 
     alternatives as to where to build the new runway capacity--
     and especially, the issues, facts and impacts to the pros and 
     cons of each alternative.
       The alternatives for new runway capacity in the region are 
     straightforward: (1) build new runways at a new airport, (2) 
     build a new runways at O'Hare, (3) build new runways at 
     Midway, or (4) a combination of all of the above. Given these 
     alternatives, the following facts are clear:
       1. The new runways can be built faster at a new airport as 
     opposed to O'Hare or Midway. Simply from the standpoint of 
     physical construction (as well as paper and regulatory 
     planning) the new runways can be built faster at a 
     ``greenfield'' site than they can at either O'Hare or Midway.
       2. More new runway capacity can be built at a new site than 
     at O'Hare or Midway. Given the space limitations of O'Hare 
     and Midway, it is obvious that more new runways (and 
     therefore more new runway capacity) can be built at a new 
     larger greenfield site than at either O'Hare and Midway. We 
     acknowledge that additional space can be acquired at Midway 
     or O'Hare by destroying densely populated surrounding 
     residential communities--but only at tremendous economic and 
     environmental cost.
       3. The new runways can be built at far less cost at a new 
     airport than at O'Hare or Midway. Again, it is obvious that 
     the new runways--and their associated capacity--can be built 
     at far less cost at a ``greenfield'' site than they can at 
     either O'Hare or Midway. Given the enormous public taxpayer 
     resources that must be used for any of the alternatives--and 
     the relative scarcity of public funds--the Bush 
     Administration should compare the overall costs of building 
     the new runway capacity (and associated terminal and access 
     capacity) at a new airport vs. building the new capacity at 
     O'Hare or Midway.
       4. Construction of the new capacity at a new airport will 
     have far less impact on the environment and public health 
     than would expansion of either Midway or O'Hare. Midway, and 
     later O'Hare, were sited and built at a time when concerns 
     over environment and public health were far less than they 
     are today. As a result, both existing airports have virtually 
     no ``environmental buffer'' between the airports and the 
     densely populated communities surrounding these airports. In 
     contrast, the site of the new South Suburban Airport has, by 
     design, a large environmental buffer which will ameliorate 
     most, if not all, of the environmental harm and public health 
     risk from the site. Indeed, prudence would suggest an even 
     larger environmental buffer around the South Suburban site 
     than is now contemplated. We can create the same or similar 
     environmental buffer around O'Hare or Midway--but only at a 
     cost of tens of billions of dollars and enormous social and 
     economic disruption.
       5. Construction of the new capacity at a new airport offers 
     the best opportunity for bringing major new competition into 
     the region. When comparing costs and benefits of 
     alternatives, the Bush Administration must address the 
     existing problem of monopoly (or duopoly) fares at ``Fortress 
     O'Hare'' and the economic penalty such high fares are 
     inflicting on the economic and business community in our 
     region. Does the lack of significant competition allow 
     American and United to charge our region's business travelers 
     higher fares than they could if there was significant 
     additional competition in the region? What is the economic 
     cost to the region--in both higher fares and lost business 
     opportunities--of the existing ``Fortress O'Hare'' business 
     fare dominance of United and American?
       The State of Illinois has stated that existing ``Fortress 
     O'Hare'' business fare dominance of United and American costs 
     the region many hundreds of millions of dollars per year. 
     Bringing in one or more significant competitors to the region 
     would bring enormous economic benefits in increased 
     competition and reduced fares.
       And the only alternative that has the room to bring in 
     significant new competition is the new airport. Certainly the 
     design of Chicago's proposed World Gateway program--designed 
     in concert with United and American to preserve and expand 
     their dominance at O'Hare--does not offer opportunities for 
     major competitors to come in and compete head-to-head with 
     United and American.
       6. The selected alternative cannot be expansion at O'Hare 
     and construction of a new airport. The dominant O'Hare 
     airlines are pushing their suggestion: add another runway at 
     O'Hare and allow a ``point-to-point'' small airport to be 
     built at the South Suburban Site.
       That is not an acceptable alternative for several reasons:
       First, it presumes massive growth at O'Hare, as it is based 
     on the assumption that all transfer traffic growth--along 
     with the origin-destination traffic to sustain the transfer 
     growth--stays at O'Hare. If that assumption is accepted, the 
     airlines already know that demand growth for the traffic 
     assumed to stay at O'Hare will necessitate not one, but two 
     or more additional runways. This increase in traffic at 
     O'Hare will have serious environmental and public health 
     impacts on surrounding communities.
       Second, this alternative destroys the economic 
     justification for the new airport. With massive new capacity 
     at O'Hare, there would be no economic need for the new 
     airport.
       Third, assuming the new airport is built anyway, as a 
     ``compromise'', this alternative guarantees that the new 
     airport will be a ``white elephant''--much as the Mid-America 
     airport near St. Louis is today because of the Fortress Hub 
     practices of the major airlines and as was Dulles 
     International as long as Washington National was allowed to 
     grow. With limits on the growth of National finally 
     recognized, Dulles is now the thriving East Coast Hub for 
     United.


                           related questions

       If the Region needs new runways, what is the sense of 
     spending over several billion dollars--much of it public 
     money--to build the World Gateway Program at O'Hare if we 
     decide that new runway capacity should be built elsewhere? If 
     the decision is to build the new runways at O'Hare, then much 
     of the 5-6 billion dollar terminal and roadway expansion 
     proposed for O'Hare may be justified.
       But if the decision is that the new runway capacity should 
     be built elsewhere, then the proposed multi-billion dollar 
     expansion makes no sense. We will be spending billions of 
     dollars in taxpayer funds for a massive project that standing 
     alone--without new runways--will not add any new capacity to 
     our region.
       The airlines know this fact and that is why they--and their 
     surrogates at the Civic Committee and the Chicagoland 
     Chamber--are pushing for new runways.
       If the Region needs new runways and we wish to explore the 
     alternative of putting the new runways in at O'Hare, what is 
     the full cost of expanding O'Hare as opposed to constructing 
     a new airport? If others wish to explore the alternative of 
     an expanded O'Hare as the place to build the new runways 
     capacity for the region, let's have an honest exploration and 
     discussion of the full costs of expanding O'Hare with new 
     runways and compare it to the cost of building the new 
     airport. Chicago and the airlines already know what the 
     components of an expanded O'Hare would be.
       These components are laid out in Chicago's ``Integrated 
     Airport Plan and include a new ``quad runway'' system for 
     O'Hare and additional ground access through ``western 
     access''.
       Based on information available, we believe that the cost of 
     the O'Hare expansion would exceed ten billion dollars. These 
     costs should be compared with the costs of a new airport.
       Are the delay and congestion problems experienced at O'Hare 
     self-inflicted? Sadly, when Chicago and the major O'Hare 
     airlines advocated lifting of the ``slot'' restrictions at 
     O'Hare and other major ``slot'' controlled airports, the 
     Clinton Administration and others ignored the warnings of 
     Congressman Jackson, and myself that the airport could not 
     accommodate the additional flights

[[Page 13990]]

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

[[Page 13991]]

     soundproofing program--because it is so limited in scope and 
     ignores thousands of adversely impacted homes--has caused 
     even more animosity in our communities.
       In short, residential soundproofing is not the panacea that 
     Chicago and many in the downtown media perceive it to be. 
     Moreover, it does nothing to address the toxic air pollution 
     and other safety related concerns of our residents.
       Can we have more than one ``hub'' airport operating in the 
     same city? Faced with the potential inevitability of a new 
     airport, the airlines for the last two years have been 
     arguing for an expansion of O'Hare (instead of a major new 
     airport) with the argument that a metropolitan area cannot 
     have more than one hub airport. Based on that premise, United 
     and American say that the sole hub airport in metro Chicago 
     should be O'Hare. That simply is not correct:
       1. There are several domestic and international cities with 
     more than one hubbing airport. Competing airlines create 
     hubbing operations wherever airport space is available. Thus, 
     there are multiple hubbing airports in metro New York (JFK 
     and Newark), Washington, D.C., London, and Paris.
       2. The Lake Calumet Airport proposed by Mayor Daley would 
     have been a second hub airport.
       3. There is simply no reason--given the size of the 
     business and other travel origin-destination market in metro 
     Chicago--that a new hub competitor could not establish a 
     major presence at a new south suburban airport.
       How do we fund new airport construction? The answer is 
     simply and the same answer Mayor Daley had for the proposed 
     Calumet Airport. Daley proposed using a mix of PFC and AIP 
     funds to induce carriers to use the new airport. Indeed, the 
     entire justification for his urging the passage of PFC 
     legislation was to collect PFCs at O'Hare and use them for 
     the new airport.
       But United and American claim that the PFC revenues are 
     ``their'' money. On the contrary, the PFC funds are federal 
     taxpayer funds no different in their nature as taxpayer 
     dollars than the similar ``AIP'' tax charged to air 
     travelers. These funds don't belong to the airlines. They are 
     federal funds collected and disbursed through a joint program 
     administered by the FAA and the airport operator.
       Nor are these federal taxpayer funds ``Chicago's'' money. 
     Chicago is simply a tax collection agent for the federal 
     government.
       But how do we get the funds from O'Hare to the new airport? 
     We do it the same way Mayor Daley is transferring funds from 
     O'Hare to Gary and the same way he proposed getting federal 
     funds collected at O'Hare to the Lake Calumet project: a 
     regional airport authority.


                              suggestions

       We have respectfully posed some questions and posited some 
     answers for the President's and your consideration. We 
     believe that a thorough and candid examination and discussion 
     of these questions leads to only one conclusion: we should 
     build a new airport and we should not expand O'Hare.
       But more than raising questions, we also have several 
     concrete suggestions for addressing the region's air 
     transportation needs:
       1. Let's stop the paper shuffling and build the new 
     airport. The program we outline is this letter is virtually 
     identical to the proposal drafted by Mayor Daley for 
     construction of the Lake Calumet Airport. We believe that a 
     cooperative fast-track planning and construction program for 
     a new airport could see the new airport open for service in 
     3-5 years.
       2. The money, resources and legal authority to build the 
     new airport can be assembled by passage of a regional airport 
     authority bill similar to the regional airport authority bill 
     drafted in 1992 by Mayor Daley for the Lake Calumet project. 
     So the Illinois General Assembly is a necessary partner in 
     any effort. But equally important is the dominant role of the 
     federal Administration in controlling the use of AIP and PFC 
     funds and in assertive enforcement of federal antitrust laws. 
     Let's put together a federal-state partnership to get the job 
     done.
       3. Give the O'Hare suburbs guaranteed protection against 
     further expansion of O'Hare. Such guarantees are needed not 
     only for our protection but for the viability of the new 
     regional airport.
       4. Provide soundproofing for all of the noise impacted 
     residences around O'Hare and Midway. The new airport 
     addresses future needs; it does not correct existing problems 
     caused by existing levels of traffic.
       5. Initiate a regulatory program to control and reduce air 
     toxics emissions from O'Hare.
       6. Fix the short-term delay and congestion at O'Hare by 
     returning to a recognition of the existing capacity limits of 
     the airport. The delay and congestion now experienced at 
     O'Hare is a self-inflicted wound brought about by airline 
     attempts to stuff too many planes into that airport. The 
     delays and congestion will be dramatically reduced 
     immediately by reducing scheduled traffic to a level 
     consistent with the exiting capacity of the airport.
       7. Demand a break-up and reform of the Fortress Hub anti-
     competitive phenomenon--both at O'Hare and at other Fortress 
     Hubs around the nation. This can be done with either 
     aggressive antitrust enforcement or with proper oversight of 
     the disbursal of massive federal subsidies.
       8. The entire World Gateway Program should be exmained in 
     light of the questions raised here and should be modified or 
     abandoned depending on the answers provided to these 
     questions.
       We would appreciate the opportunity to discuss these 
     matters with you and Secretary Mintea at your convenience.
                                  ____



                                     House of Representatives,

                                                   Washington, DC.

Five Reasons to Oppose the National Aviation Capacity Expansion Act (HR 
                                 3479)

       Dear Colleague: This legislation to expand O'Hare 
     International Airport is fatally flawed because it will:
       1. SET A TERRIBLE PRECEDENT: This bill will allow the 
     federal government to pre-empt state law requiring approval 
     of airport construction and expansion--approval that requires 
     the blessing of the state legislature. Will your state 
     legislature be next to lose its power to decide local airport 
     matters?
       The bill also will lead to a rash of demands from various 
     localities for priority standing for airport funding, 
     bypassing reasonable administrative planning and 
     environmental review processes.
       2. THREATEN SAFETY AND THE ENVIRONMENT: This legislation 
     attempts to superimpose what amounts to an airport the size 
     of Dulles International on a land-locked airport the size of 
     Reagan National--an absurd idea on its face. Former U.S. 
     Department of Transportation Inspector General Mary Schiavo 
     has called this proposal ``a tragedy waiting to happen.''
       Putting 1.6 million planes a year into the O'Hare airspace 
     already overcrowded with 900,000 flights doesn't make sense. 
     It increases the risk of a serious accident and it 
     jeopardizes surrounding schools, homes and businesses.
       A third regional airport that can be built in one-third of 
     the time and at one-third of the cost of expanding O'Hare.
       O'Hare is already the largest polluter in the Chicago 
     region. With expansion, noise and air pollution will increase 
     exponentially.
       3. UPROOT THOUSANDS OF FAMILIES: This legislation will 
     destroy the single largest concentration of federally 
     assisted affordable housing in one of the nation's most 
     affluent counties. These are the homes that low-income people 
     and other minorities, particularly Hispanics, depend on.
       Up to 1,500 or more homes will be destroyed. These homes 
     will be condemned or taken by eminent domain, leaving those 
     homeowners few options to find affordable housing elsewhere.
       4. THREATEN THOUSANDS OF JOBS; This legislation will 
     destroy as much as one-third of the nation's largest 
     contiguous industrial park, threatening tens of thousands of 
     jobs. How many jobs will be created by the airport expansion? 
     That remains a great mystery.
       5. COST TOO MUCH: This legislation will require the 
     expenditure of $15 billion or more once the entire 
     infrastructure, relocation, soundproofing and other costs are 
     figured in. This is much more costly than the $6.6 billion 
     that supporters keep touting.
       Commits Chicago, Illinois and federal taxpayers to a plan 
     whose costs have not been adequately detailed. We have 
     requested documentation of the costs, but have been rebuked. 
     That is why a Freedom of Information lawsuit is pending in 
     Illinois court.
                                  ____


               [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

[[Page 13992]]

     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'.
       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

[[Page 13993]]

     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.
       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

[[Page 13994]]

     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 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

[[Page 13995]]

     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. 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

[[Page 13996]]

     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. 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.''

[[Page 13997]]



                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 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

[[Page 13998]]

     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.
                                  ____


                        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

[[Page 13999]]

     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
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 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 
     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; 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 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

[[Page 14000]]

     economic well-being of both Chicago and the nation are 
     jeopardized.

    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 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.
       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

[[Page 14001]]

     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 lost 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 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

[[Page 14002]]

     environmentally-sensitive fringes of the region and in areas 
     farther removed from the region's central core.


                       The Two Sides of the Coin

       While unprecedented growth takes place around O'Hare, to 
     the north, the three million residents of the region who 
     reside south of McCormick Place are left with long trips to 
     the airport for flights and out of the running for the many 
     jobs it produces. The consequences, for South Side/South 
     Suburban residents and the dwindling businesses that serve 
     them, are the highest property tax rates in the State. 
     Because jobs have disappeared, residents have some of the 
     longest trips to work in the nation. Because transit only to 
     the Loop is convenient, recent job losses in that area, as 
     well, (11,000 since 1991; 25,000 since 1983) have compounded 
     the job searches of the South Side's residents. For decades, 
     regional planning agencies have called for the development of 
     moderate-income housing near job concentrations. Instead, let 
     us bring the jobs to the residents.
       Recent public forums on the disparity of property tax rates 
     in Cook County's north and south communities have led to the 
     South's designation as the ``Red Zone,'' signifying its 
     concentration of highest property tax rates. This disparity 
     was not always so. It has occurred over the last three 
     decades and proliferated in the last two, as shown below. The 
     ``Metropolis 2020'' study addresses this disparity issue by 
     calling for a sharing of revenues with the ``lesser haves.'' 
     The more-responsive, enduring and--ultimately--more-equitable 
     solution is to provide the South Side with the economic 
     opportunities generated by the Third Chicago Airport.
       Whether the region expands O'Hare or builds a supplemental 
     airport, O'Hare's riches will remain and grow. It is 
     currently enjoying a $1 billion public investment to upgrade 
     its terminals. Midway, as well, will continue to thrive, as 
     the recipient of an $800-million-publicly-funded new 
     terminal. However, this $1.8 billion investment will not 
     increase capacity. The initial infrastructure investment of 
     $500 million ($2.5 billion through 2010) to build the Third 
     Chicago Airport, will. And, it will produce more than just 
     added aviation capacity. The Third Chicago Airport will 
     provide 235,000 airport-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.
       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,

[[Page 14003]]

     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. Lipinski 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 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.

[[Page 14004]]

     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 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.

[[Page 14005]]

     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 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

[[Page 14006]]

     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 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.

[[Page 14007]]

       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 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.

[[Page 14008]]

       Printz v. United States. Following the New York decision, 
     the Court invalidated another federal statute imposing 
     certain administrative duties on local law enforcement 
     officials, in Printz v. United States. The Brady Act, for a 
     temporary period of time, required local law enforcement 
     officials to use ``reasonable efforts'' to determine if 
     certain gun sales were lawful under federal law. The federal 
     law also ``empowered'' these local officers to grant waivers 
     of the federally prescribed 5-day waiting period for handgun 
     purchases Note that the proposed Durbin-Lipinski legislation 
     will also ``empower'' the City of Chicago to do that which 
     Illinois does not authorize the city to do.
       To make the analogy even more compelling, the chief law 
     enforcement personal suing in the Printz case said that state 
     law prohibited them from undertaking these federal 
     responsibilities. That, of course, is the exact position in 
     which Chicago finds itself. State law prohibits Chicago from 
     entering into and committing to these federal 
     responsibilities (e.g., the agreements between Chicago and 
     the FAA in Sec. 3(f) of the proposed Durbin-Lipinski 
     legislation call for construction as a ``federal project'' 
     but then require Chicago to either construct or allow 
     construction without a permit from the State of Illinois).
       We should realize that the proposed Durbin-Lipinski 
     legislation--in commanding and singling out the State of 
     Illinois to, in effect, repeal its legislation governing the 
     powers delegated to the City of Chicago--is quite unusual and 
     not at all in the tradition of federal legislation. For most 
     of our history, Congress would explicitly only ``recommend'' 
     or ``request'' the assistance of the governors and state 
     legislatures in implementing federal policy. It is only in 
     very recent times that Congress has sought explicitly to 
     commandeer or order the legislative and executive branches of 
     the States to implement federal policies. Because such 
     federal legislative activity is recent, the case law in this 
     area is recent, but the case law is clear in prohibiting this 
     type of federal assertion of power.
       New York v. United States held that Congress cannot 
     ``command a State government to enact state regulation.'' 
     Congress may regulate interstate commerce directly, but it 
     may not ``regulate state governments'' regulation of 
     interstate commerce.'' The Federal Government may not 
     ``conscript state governments as its agents.'' Congress has 
     the ``power to regulate individuals, not States.''
       In short, there are important limits on the power of the 
     federal government to commandeer the state legislature or 
     state executive branch officials for federal purposes. 
     Another way to think about this issue is that, to a certain 
     extent, the Constitution forbids Congress from imposing what 
     recently have been called ``unfunded mandates'' on state 
     officials. Congress cannot simply order the States or state 
     officials or a city to take care of a problem. Congress can 
     use its spending power to persuade the States by using the 
     carrot instead of the stick.
       While there are those who have attacked the restrictions 
     that New York v. United States have imposed on the Federal 
     Government, it is worth remembering the line-up of the Court 
     in Maryland v. Wirtz when the justices first considered this 
     issue. That case rejected the applicability of the Tenth 
     Amendment and held that it was constitutional for Congress to 
     set the wages, hours, and working conditions of employees, 
     including state employees in interstate commerce. However, 
     Justice Douglas, who was joined by Justice Stewart, 
     dissented. Douglas found the law to be a ``serious invasion 
     of state sovereignty protected by the Tenth Amendment'' and 
     ``not consistent with our constitutional federalism.'' He 
     objected that Congress, using the broad commerce power, could 
     ``virtually draw up each State's budget to avoid `disruptive 
     effect[s]''' on interstate commerce. New York v. United 
     States prevents this result.
       The ``generally applicable'' restriction is important, and 
     it explains Reno v. Condon. Congress enacted the Driver's 
     Privacy Protection Act (DPPA), which limited the ability of 
     the States to sell or disclose a driver's personal 
     information to third parties without the driver's consent. 
     Chief Justice Rehnquist, for a unanimous Court, upheld the 
     law as a proper regulation of interstate commerce and not 
     violating any principles of federalism found in New York v. 
     United States or Printz because the law was ``generally 
     applicable.''
       Reno grew out of a congressional effort to protect the 
     privacy of drivers' records. As a condition of obtaining a 
     driver's license or registering a car, many States require 
     drivers to provide personal information, such as name, 
     address, social security number, medical information, and a 
     photograph. Some States then sell this personal information 
     to businesses and individuals, generating significant 
     revenue. To limit such sales, Congress enacted the DPPA, 
     which governs any state department of motor vehicles (DMV), 
     or state officer, employee, or contractor thereof, and any 
     resale or re-disclosure of drivers' personal information by 
     private persons who obtained the information from a state 
     DMV. The Court concluded: ``The DPPA's provisions do not 
     apply solely to States. Private parties also could not buy 
     the information for certain prohibited purposes nor could 
     they resell the information to other parties for prohibited 
     purposes, and the States could not sell the information to 
     the private parties for certain purposes if the private 
     parties could not buy it for those purposes.
       Unlike the law in New York, the Court concluded that the 
     DPPA does not control or regulate the manner in which States 
     regulate private parties, it does not require the States to 
     regulate their own citizens, and it does not require the 
     state legislatures to enact any laws or regulations. Unlike 
     the law in Printz, the DPPA does not require state officials 
     to assist in enforcing federal statutes regulating private 
     individuals. This DMV information is an article of commerce 
     and its sale or release into the interstate stream of 
     business is sufficient to support federal regulation.
       The DPPA is a ``generally applicable'' federal law 
     regulating commerce because it regulates the universe of 
     entities that participate as suppliers to the market for 
     motor vehicle information--the states as initial suppliers 
     and the private resellers or redisclosers of this 
     information. ``South Carolina has not asserted that it does 
     not participate in the interstate market for personal 
     information. Rather, South Carolina asks that the DPPA be 
     invalidated in its entirety, even as applied to the States 
     acting purely as commercial sellers.''


                               conclusion

       The proposed federal law dealing with the O'Hare Airport 
     expansion is most likely unconstitutional because it imposes 
     federal rules on the relationship between a city and the 
     State that created the city. It subjects Illinois to special 
     burdens that are not generally applicable to private parties 
     or even to other States. It authorizes the City of Chicago to 
     do that which Illinois now prohibits.
       There is no escape from the conclusion that the proposed 
     federal law does not regulate the behavior of private parties 
     in interstate commerce. It does not subject the State of 
     Illinois to ``generally applicable'' legislation. Instead, 
     Congress is regulating the state's regulation of interstate 
     commerce. Congress may not conscript the instrumentalities of 
     state government and state power as tools of federal power. 
     The case law is clear that Congress does not have this power.
           Sincerely,
                                                Ronald D. Rotunda,
     The Albert E. Jenner, Jr. Professor of Law.
                                  ____


                               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 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--

[[Page 14009]]

     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 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.

[[Page 14010]]

       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.
       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,

[[Page 14011]]

     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, vendor, 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, vendor, 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.
       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

[[Page 14012]]

     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 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.

[[Page 14013]]


       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.

[[Page 14014]]

     Finally, I conclude that this Fortress Hub system constitutes 
     a per se violation of federal antitrust laws. Given these 
     conclusions, 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 O'Hare'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.

       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

[[Page 14015]]

     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 bills sets dangerous precedence by stating 
     that Congress--not the FAA, not Departments of 
     Transportation, not aviation experts--but Congress shall plan 
     and built airports. Further, it ignores the 10th Amendment to 
     the U.S. Constitution. It guts and/or undermines state laws 
     and environmental protections. And it sidesteps the checks-
     and-balances and the public hearing process.
       My focus today is the same as it's always been. Finding the 
     best fix. And that best fix is the construction of a third 
     Chicago airport near Peotone, Illinois. The plain truth is 
     Peotone could be 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;

[[Page 14016]]

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


                               conclusion

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

                                                    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.

[[Page 14017]]

     
                                  ____
                                     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.
       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

[[Page 14018]]

     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.
                                  ____

     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.


                           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 
     O'Hare expansion makes no sense. We will be spending billions 
     of dollars in taxpayer funds for a massive project that 
     standing alone--without

[[Page 14019]]

     new runways--will not add any new capacity to our region.
       The airlines know this fact and that is why they--and their 
     surrogates at the Civic Committee and the Chicagoland 
     Chamber--are pushing for new runways.
       If the Region needs new runways and we wish to explore the 
     alternative of putting the new runways in at O'Hare, what is 
     the full cost of expanding O'Hare as opposed to constructing 
     a new airport? If others wish to explore the alternative of 
     an expanded O'Hare as the place to build the new runways 
     capacity for the region, let's have an honest exploration and 
     discussion of the full costs of expanding O'Hare with new 
     runways and compare it to the cost of building the new 
     airport. Chicago and the airlines already know what the 
     components of an expanded O'Hare would be. These components 
     are laid out in Chicago's ``Integrated Airport Plan and 
     include a new ``quad runway'' system for O'Hare and 
     additional ground access through western access''.
       Based on information available, we believe that the cost of 
     the O'Hare expansion would exceed ten billion dollars. These 
     costs should be compared with the costs of a new airport.
       Are the delay and congestion problems experienced at O'Hare 
     self-inflicted? Sadly, when Chicago and the major O'Hare 
     airlines advocated lifting of the ``slot'' restrictions at 
     O'Hare and other major ``slot'' controlled airports, the 
     Clinton Administration and others ignored the warnings of 
     Congressman Jackson, and myself that the airport could not 
     accommodate the additional flights without a chaotic increase 
     in delays and congestion. Indeed, the chaos we predicted has 
     come true and we now have a ``Camp O'Hare'' where air traffic 
     is managed by cancellation rather than by adequate service.
       Like Cassandra, our prophecy was ignored. The Clinton 
     Administration endorsed lifting the slot controls and chaos 
     ensued.
       But just because our warnings were ignored doesn't mean 
     that practical solutions should continue to be ignored. The 
     delays and congestion were predictable and certain--predicted 
     based on delay/capacity analysis conducted by the FAA. Just 
     as certain are the short term remedies.
       Just as the congestion was brought on by overstuffing 
     O'Hare with more aircraft operations than it can handle, the 
     congestion and delay can immediately be reduced to acceptable 
     levels by reducing the scheduled air traffic to the level 
     that can be easily accommodated by O'Hare without the risk of 
     unacceptable delays. The delay chaos was self-inflicted by 
     ignoring the flashing warnings put out by the FAA and other 
     experts. The solution can be easily administered by the FAA 
     recognizing--as it has at LaGuardia--that limits must be 
     placed on uncontrolled airline desire to overscheduled 
     flights.
       Should the short-term ``fix'' to the delays and congestion 
     include ``capacity enhancement'' through air traffic control 
     devices? Absent new runways, the FAA has encouraged and 
     permitted a variety of operational devices designed to allow 
     increased levels of departures and arrivals in a set period 
     of time. These procedures--known as ``incremental capacity 
     enhancement''--focus on putting moving aircraft closer 
     together in time and space--to squeeze more operations into a 
     finite amount of runways. Typically, this squeezing is done 
     in low visibility, bad weather conditions because these are 
     the conditions where FAA wants to increase capacity.
       While the air traffic controllers remain mute on the safety 
     concerns raised by these procedures, the pilots surely 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 fields of air pollution and public health to conduct a 
     preliminary study 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 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.

[[Page 14020]]

       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 DNIL (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 percent of the homes that Chicago itself 
     acknowledges to be severely impacted.
       3. Chicago came into our communities asking to put in noise 
     monitors to collect ``real world'' data as to the levels of 
     noise. Yet, despite promises to share the data, Chicago 
     refuses to share the data with our communities.
       4. Instead of an atmosphere of trust, these tactics by 
     Chicago have created additional animosity as neighbors on one 
     side of an alley or street get soundproofing while their 
     neighbors across that alley or street get no soundproofing. 
     Indeed, Chicago's residential soundproofing program--because 
     it is so limited in scope and ignores thousands of adversely 
     impacted homes--has caused even more animosity in our 
     communities.
       In short, residential soundproofing is not the panacea that 
     Chicago and many in the downtown media perceive it to be. 
     Moreover, it does nothing to address the toxic air pollution 
     and other safety related concerns of our residents.
       Can we have more than one ``hub'' airport operating in the 
     same city? Faced with the potential inevitability of a new 
     airport, the airlines for the last two years have been 
     arguing for an expansion of O'Hare (instead of a major new 
     airport) with the argument that a metropolitan area cannot 
     have more than one hub airport. Based on that premise, United 
     and American say that the sole hub airport in metro Chicago 
     should be O'Hare. That simply is not correct:
       1. There are several domestic and international cities with 
     more than one hubbing airport. Competing airlines create 
     hubbing operations wherever airport space is available. Thus, 
     there are multiple hubbing airports in metro New York (JFK 
     and Newark), Washington D. C., London, and Paris.
       2. The Lake Calumet Airport proposed by Mayor Daley would 
     have been a second hub airport.
       3. There is simply no reason--given the size of the 
     business and other travel origin-destination market in metro 
     Chicago--that a new hub competitor could not establish a 
     major presence at a new south suburban airport.
       How do we fund new airport construction? The answer is 
     simple 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 in this letter is virtually 
     identical to the proposal drafted by Mayor Daley for 
     construction of the Lake Calumet Airport. We believe that a 
     cooperative fasttrack 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 
     toxic 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 examined 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 Mineta at your convenience.
                                  ____

                                             Chicago Urban League,
                                 Chicago, Illinois, June 27, 2002.
     Rep. William O. Lipinski,
     Rayburn House Office Building,
     Washington, DC.
       Dear Representative Lipinski: I am writing to express my 
     concern about your omission of any special provision for a 
     south suburban airport near Peotone from the O'Hare expansion 
     legislation that you are introducing for consideration in the 
     House of Representatives.
       The expansion agreement reached last December by Illinois 
     Governor George Ryan and Chicago Mayor Richard Daley was the 
     product of a long and difficult process of political 
     negotiation. To reach this historic and comprehensive 
     aviation agreement, it was deemed essential to include a 
     special measure giving priority consideration to federal 
     funding of airport development in Peotone.
       Along with Governor Ryan, Mayor Daley, and a host of state 
     legislators, aldermen, and other civic and business leaders 
     from the Chicago area, I met last February with you and 
     Senator Dick Durbin to plot a strategy to secure federal 
     funding to make O'Hare the airport hub of the nation. Our 
     Chicago delegation of The Campaign to Expand National 
     Aviation Capacity left Washington, DC. with the understanding 
     that you agreed that this goal would be best achieved through 
     a bill that provides for a modernized and expanded O'Hare and 
     funding for a new airport in Peotone. As our delegation 
     indicated in February, both are needed, and both play 
     important roles in the Chicago region's strongly linked 
     aviation and economic futures.
       I know that you agree with the Campaign's belief that 
     Chicago's airports are key to the future of every citizen in 
     Illinois. They are the economic engines that create jobs, 
     provide new business opportunities, and make Chicago one of 
     the world's truly great cities.
       In the interest of maintaining a strong Chicago and 
     Illinois coalition in support of airport expansion in the 
     Chicago area, I urge you to revisit the discussions we had 
     last winter and to reconsider your omission of the Peotone 
     provision.
       If you or your staff have any questions or comments 
     regarding the Chicago Urban League's position on this key 
     issue, please do not hesitate to call me at 773-451-3500.
           Sincerely,
                                                 James W. Compton,
                                                President and CEO.
       cc: Representative Jesse L. Jackson, Jr.
                                  ____

                                                Rosemary Mulligan,


                State Representative, 55th District, Illinois,

                                                     July 5, 2002.
     SUBJECT: Vote ``No'' on H.R. 3479
     Hon. Jesse L. Jackson, Jr.,
     House of Representatives, Washington, DC.
       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

[[Page 14021]]

     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.
                                  ____

                                              National Air Traffic


                                      Controllers Association,

                                   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 as one 
     runway for safety reasons. The same is true for the set of 
     parallels directly south of the terminal; they too are only 
     1200' apart.
       2. Both sets of parallel runways closest to the terminal 
     (the ones referred to above) are all a minimum of 10,000' 
     long. This creates a runway incursion problem, which is a 
     very serious safety issue. Because of their length and 
     position, all aircraft that land or depart O'Hare would be 
     required to taxi across either one, or in some cases two 
     runways to get to and from the terminal. This design flaw 
     exists in both the Daley and the Ryan plan. A runway 
     incursion is when an aircraft accidentally crosses a runway 
     when another aircraft is landing or departing. They are 
     caused by either a mistake or 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 led the nation in runway incursions 
     for several years. A large part of their incursion problem is 
     the parallel runway layout; aircraft must taxi across runways 
     to get to and from the terminals.
       3. The major difference in Governor Ryan's counter proposal 
     is the elimination of the southern most runway. If this 
     runway were eliminated, the capacity of the new airport would 
     be less than we have now during certain conditions (estimated 
     at about 40% of the time). If you look at Mayor Daley's plan, 
     it calls for six parallel east-west runways and two parallel 
     northeast-southwest runways. The northeast-southwest 
     parallels are left over from the current O'Hare layout. These 
     two runways simply won't be usable in day-to-day operations 
     because of the location of them (they are wedged in between, 
     or pointed at the other parallels). We would not use these 
     runways except when the wind was very strong (35 knots or 
     above) which we estimate would be less than 1% of the time. 
     That leaves the six east/west parallels for use in normal 
     day-to-day operations. This is the same number of runways 
     available and used at O'Hare today. If you remove the 
     southern runway (Governor Ryan's counter proposal), you are 
     leaving us five runways which is one less than we have now. 
     That means less capacity than today's O'Hare during certain 
     weather conditions. With good weather, you may get about the 
     same capacity we have now. If this is the case, then why 
     build it?
       4. The Daley-Ryan plans call for the removal of the NW/SE 
     parallels (Runways 32L and 32R). This is a concern because 
     during the winter it is common to have strong winds out of 
     the northwest with snow, cold temperatures and icy 
     conditions. During these times, it is critical to have 
     runways that point as close as possible into the wind. 
     Headwinds mean slower landing speeds for aircraft, and they 
     allow for the airplane to decelerate quicker after landing 
     which is important when landing on an icy runway. Landing 
     into headwinds makes it much easier for the pilot to control 
     the aircraft as well. Without these runways, pilots would 
     have to land on icy conditions during strong cross-wind 
     conditions. This is a possible safety issue.
       These are the four major concerns we have with the Daley-
     Ryan runway plans. There are many more minor issues that must 
     be addressed. Amongst them are taxiway layouts clear zones 
     (areas off the ends of each runway required to be clear of 
     obstructions), ILS critical areas (similar to clear zones, 
     but for navigation purposes), airspace issues (how arrivals 
     and departures will be funneled into those now 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
                                  ____


              [From the Chicago Sun-Times, July 21, 2002]

                Building 3rd Airport is Top Priority Now

                       (By Rep. Jesse L. Jackson)

       Unfortunately, the House defeat of the O'Hare expansion 
     bill last week has shifted the debate from ``substance'' to 
     ``power.'' The focus now is on machismo: ``Does [Rep. 
     William] Lipinski have the power to ram a bill through 
     Congress?'' It is not on the real issue: ``Who has the best 
     solution to the air capacity crisis?''
       All four sides in this dispute agree on the analysis: There 
     is an air capacity crisis at O'Hare. The disagreement comes 
     over how to resolve it.
       Many suburbs around O'Hare, for a wide variety of valid 
     reasons, are absolutely against O'Hare expansion. They also 
     believe expanding O'Hare will make Peotone unnecessary.
       Mayor Daley and the downtown business and media community, 
     who maniacally support O'Hare expansion and are attempting to 
     ram it down the throats of everyone else--regard less of who 
     is opposed or why--also believe it will kill Peotone. This 
     interconnected and elite group of business leaders and 
     politicians has an interest in maintaining American's and 
     United Airlines' duopoly at O'Hare, where ticket prices are 
     one-third higher than the national average, costing consumers 
     an extra $1 billion. The mayor also has an interest in 
     maintaining his campaign contributors, who, in many 
     instances, are the same businesses connected at O'Hare's hip.
       Others want to expand O'Hare and build Peotone 
     simultaneously. However, Lipinski's bill removes Peotone as a 
     priority--leaving its proponents with little more than 
     baseless hope and a prayer.
       A final group, of which I'm a part, wants to build Peotone 
     first, then revisit O'Hare expansion later, because: (a) 
     Peotone offers a faster, cheaper, cleaner, safer, more 
     permanent and just solution; and (b) an evolving Peotone 
     airport, accommodating 1.6 million new flights, would surely 
     make O'Hare expansion unnecessary.
       So why spend more money, take longer, increase 
     environmental problems, put the flying public in greater 
     danger, support a temporary solution--once O'Hare expansion 
     is complete, we will be in the same capacity crisis as 
     today--and increase the economic and racial divide in 
     Chicago, when there is a better way of resolving the current 
     aviation capacity crisis?
       I'm not ignorantly against 195,000 new jobs and billions of 
     dollars of investment on the North Side and northwest suburbs 
     around O'Hare. I simply note that Elk Grove Village already 
     has three jobs for every one person.
       By contrast, some communities in the 2nd Congressional 
     District have 60 people for every one job. Thus, I'm 
     intelligently for the 236,000 new jobs and billions of 
     dollars of economic activity; that Peotone will bring in

[[Page 14022]]

     and around my district, where the need is greatest. The 
     Southland needs economically stable communities, and families 
     who have a future and can send their children to college, 
     too. Peotone also benefits the entire region, state and 
     nation.
       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 vs. 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 the 
     arguments the Daley and Ryan forces have been making are 
     unconstitutional.
       Both Mayor Daleys saw the aviation capacity crisis coming. 
     Both proposed a third airport: one literally on Lake 
     Michigan, the other in Lake Calumet. Both sites were in Cook 
     County, controlled by the Daleys. However, when the most 
     credible long-term study recommended Peotone in Will County, 
     Daley did an about face.
       Without the years of obstructionist tactics by Mayor 
     Richard M. Daley, protecting his narrow and parochial 
     interests, the south suburban airport would already be built 
     and today's aviation crisis averted.
       A new airport in Peotone can still be built in one-third of 
     the time, at one-third of the cost of O'Hare expansion, with 
     less disruption and environmental damage, greater public 
     safety and more economic justice through balanced growth in 
     the Chicago metropolitan area. Why force through an 
     irrational bill when a more rational, effective and efficient 
     solution to the aviation capacity crisis is available now?
                                  ____


              [From the Chicago Sun-Times, Aug. 30, 2001]

                       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 
     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 families 
     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 in 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.''
                                  ____



                                   Suburban O'Hare Commission,

                               Bensenville, IL, 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 plan. The centerpiece of the plan 
     remains, as it has for well over a decade, a major hub 
     airport in the south suburbs that had been urged by experts 
     and government officials from three states, and would be 
     operational now if not for obstruction from Chicago Mayor 
     Richard M. Daley. The plan provides for many more flights to 
     the region, and, consequently, many more jobs.
       ``We always have been in favor of a strong O'Hare Airport 
     because of its importance to our communities and to the 
     regional economy,'' said John Geils, SOC Chairman and 
     president of the Village of Bensenville. ``This will come as 
     a surprise only to those who have been taken in by the 
     rhetoric of our opponents, who maliciously tried to portray 
     us as anti-O'Hare zealots, willing to damage or even destroy 
     O'Hare. Our plan will expand the region's aviation and 
     economic growth; the Daley-Ryan plan will stifle that growth.
       ``The claimed benefits--including delay reductions, job 
     increases, improved safety, greater competition and less 
     noise--of the Daley-Ryan O'Hare expansion plan are untrue. We 
     have a plan that is better for the entire region, and not 
     just for Chicago City Hall and its big business friends,'' 
     Geils said.
       Among the improvements are a realistically modernized 
     O'Hare, instead of the impossible attempt by Daley and Ryan 
     to stuff ten pounds of potatoes into a five-pound sack. 
     Terminals would be updated, with an eye to matching them with 
     capacity and making them more user friendly. Selected runways 
     would be widened to accommodate the large new jets, such as 
     the A380X, thus increasing the number of passengers the 
     airport can serve, without increasing air traffic. Western 
     access and a bypass route would be built on airport property, 
     skirting O'Hare to

[[Page 14023]]

     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.''
                                  ____



                                   Suburban O'Hare Commission,

                               Bensenville, IL, February 26, 2002.
     Hon. Daniel K. Akaka,
     U.S. Senate,
     Washington, DC.
       Dear Senator Akaka: The Suburban O'Hare Commission (SOC) 
     urges you to oppose H.R. 3479 and S. 1786, which have been 
     erroneously titled the National Aviation Capacity Expansion 
     Act. If enacted, this legislation would have unprecedented 
     and deleterious consequences for the national air 
     transportation system as well as for the Chicago-area 
     aviation system.
       SOC is a strong advocate of expanding airport capacity for 
     the Chicago area and has presented a plan that will meet the 
     area's aviation needs for the 21st century through the 
     development of a needed third airport in the South Suburban 
     area, as well as modernization of O'Hare International 
     Airport. SOC's plan supports and would accomplish O'Hare 
     modernization, because we recognize that it is a very 
     important aviation facility for the country and our region.
       If enacted, the proposed legislation would accord unique 
     and special status to O'Hare Airport, unlike any other 
     airport in the nation, by legislatively mandating a multi-
     billion dollar airport development project, calling for the 
     total reconstruction of O'Hare to create six new parallel 
     runways and new terminal facilities. Its promoters hope to 
     achieve nothing less than the circumvention of the existing 
     legal framework for review of airport development by the FAA 
     and the elimination of the environmental review process for 
     one of the largest airport expansions in aviation history, 
     the size, scope and cost of which has not yet been publicly 
     disclosed.
       The legislation:
       Makes it ``federal policy'' to construct the O'Hare portion 
     of the plan (projected to cost as much as 16 billion dollars) 
     and, if construction has not commenced by 2004, requires the 
     federal government to complete the project ``as a federal 
     project'';
       Preempts the State of Illinois from exercising its lawful 
     rights under its own laws;
       Mandates changes to the Clean Air Act implementation plan 
     for the Chicago region should it interfere with the O'Hare 
     expansion plans; and
       Short-circuits the environmental review process under NEPA, 
     a requirement applicable to all airport construction 
     projects.
       Each of these issues is particularly troubling from a 
     national aviation and environmental perspective. For example, 
     the curtailing of the NEPA process calls into question the 
     need for other airport projects to undergo the same rigorous 
     screening process to determine their public benefit and 
     environmental compliance. Further, the legislation would in 
     effect commit the Federal Government to spend billions of 
     dollars for a flawed airport development project, and diverts 
     needed financial and federal government resources from other 
     critically needed airport projects throughout the nation.
       The legislation is unnecessary. If the project is 
     compelling, it should be able to meet the usual and regular 
     evaluative process that is applicable to every other airport 
     in the country. The FAA possesses the special competence and 
     expertise to evaluate airport development projects. It is the 
     agency entrusted by Congress to determine whether this or any 
     other project makes sense for the national air transportation 
     system. The legislation would substantially erode the FAA's 
     independent and deliberative role in reviewing the O'Hare 
     project. Moreover, the bill short-circuits the required 
     review under the National Environmental Policy Act (NEPA), a 
     30 year old statute with a well defined process to review 
     major federal action of this type.
       The O'Hare project raises many public questions, which 
     requires full debate and public disclosure through the FAA's 
     review procedures. These questions include:
       Will the air traffic control airspace resources around 
     O'Hare allow the substantial increase in operations (project 
     to increase from 900,000 per year to 1.4 million per year)?
       Is the O'Hare expansion plan the best choice to meet the 
     future needs of the Chicago region?
       How much will the O'Hare expansion project cost?
       Will six, closely aligned parallel runways (only 1400 feet 
     apart) be cost effective to maximize the region's capacity?
       What will be the impact on surrounding neighborhoods of the 
     proposed project?
       Is it possible to tear up two major runways and build four 
     additional runways at the same time O'Hare is attempting to 
     operate at full capacity? What specific, detailed operational 
     plan has been prepared and how does it propose to make these 
     massive alterations while O'Hare continues to function as a 
     key US hub?
       Will the funds that must be expended at O'Hare preclude the 
     development of Peotone? Will such mandated funding impact 
     future developments at Midway or Milwaukee or other airports 
     in the Great Lakes region?
       What impact would the expenditure of billions of dollars 
     for, and according special congressional priority to, the 
     O'Hare project have on critically needed airport development 
     and aviation security projects for other airports throughout 
     the nation.
       It appears that one of the unstated goals of the 
     legislation is to curtail the normal NEPA process and, to 
     avoid the NEPA-mandated right of all interested persons to 
     have an opportunity to review and comment on the 
     environmental impacts of the proposal. The legislation seeks 
     to have Congress make the decisions now vested by law with 
     the FAA, even though details of the project has yet to be 
     fully disclosed, the purpose and need has yet to be 
     documented, the environmental impacts have yet to be 
     evaluated, the alternatives and cost-benefits have yet to be 
     studied.
       This is not streamlining; it is redlining for a single 
     airport! It is unprecedented in the history of civil 
     aviation. A legislative mandate giving O'Hare special 
     priority for approvals and funding for billions of taxpayers 
     dollars will adversely impact the availability of grants-in-
     aid dollars for other major airport development projects 
     around the country. If the legislation is enacted, proposed 
     enhancements at airports such as San Francisco, Washington 
     Dulles, Los Angeles, Denver, Seattle, Atlanta, and Dallas-Ft. 
     Worth may experience delays in order to accommodate the 
     preference granted to Chicago.
       The proponents of HR 3479/S 1786 unsuccessfully attempted 
     to enact this legislation without a hearing late last year 
     but that plan of action was soundly rejected by members of 
     the U.S. Senate, who objected to it being added to an 
     appropriations bill without the benefit of a hearing. The 
     speed with which its supporters want this bill to move 
     suggests that they really do not want full and open 
     consideration by Congress regarding the substantial questions 
     that surround this bill. Recent history with aviation 
     legislation should suggest that the industry's complex 
     economic, policy, financial and environment issues require 
     thoughtful review, not superficial treatment.
       The bill is also unprecedented because it curtails the 
     ability of a state to enforce its own laws and is thereby 
     inconsistent with the Tenth Amendment. Every State should be 
     very concerned about this proposed precedent, which may 
     adversely affect its ability to make similar decisions in the 
     future. Moreover, the attempt to foreclose the next 
     Governor's ability to review this project makes bad public 
     policy. The Chief Executive of a state should evidence the 
     broader support of his or her government before such projects 
     are adopted by the federal government. HR 3479/S 1786 seek to 
     abrogate that historical protection.

[[Page 14024]]

       The Senate Commerce, Science and Transportation Committee 
     is likely to hold a hearing on S 1786 in the near future. We 
     encourage you to urge Chairman Hollings and Ranking Member 
     McCain to conduct a careful and thorough investigation of the 
     legislation.
       SOC is an advocate for the expansion of Chicago's aviation 
     capacity. SOC has issued its own fully documented report 
     which sets forth a Plan to increase capacity in the Chicago 
     region. See enclosures. We urge you to oppose this 
     legislation which would reverse 30 years of precedent and 
     policy under NEPA and aviation law.
           Sincerely,
                                                    John C. Geils,
     Chairman.
                                  ____


 TESTIMONY OF THE SUBURBAN O'HARE COMMISSION BEFORE THE HOUSE AVIATION 
       SUBCOMMITTEE OF THE HOUSE COMMITTEE ON TRANSPORTATION AND 
          INFRASTRUCTURE--HEARING ON H.R. 3479, MARCH 6, 2002

              Testimony of the Suburban O'Hare Commission

       Mr. Chairman, and members of the House Aviation 
     Subcommittee, the Suburban O'Hare Commission (SOC), a 
     consortium of 14 local governments adjacent to O'Hare 
     International Airport, representing the interests of over 1.5 
     million citizens, is grateful for the opportunity to present 
     its views concerning the important national aviation policy 
     and legal issues raised by H.R. 3479.
       This legislation is intended to fast-track a massive new 
     runway redevelopment plan for the Chicago O'Hare 
     International Airport. Its principal purpose and effect would 
     be to circumvent established requirements for review of 
     airport development projects by the Federal Aviation 
     Administration (FAA) and environmental agencies. The effect 
     of the bill would be to silence, through an act of Congress, 
     further public debate concerning the future and direction of 
     Chicago's airport needs. It would effectively curtail the 
     role of the FAA in evaluating and approving airport 
     development projects; it would also have the effect of 
     substantially reducing the protections of NEPA that safeguard 
     the environment and the public health and welfare. H.R. 3479 
     represents an unprecedented abandonment of the federal laws 
     established by Congress to provide for the reasoned and 
     orderly construction of airports in a manner consistent with 
     the public interest.
       At the outset, it is important for you to understand what 
     SOC stands for, and what it does not. SOC is not opposed to 
     airport development, nor the need to improve the capacity and 
     efficiency of Chicago's airport system. To the contrary, 
     there is broad regional consensus--including SOC--that the 
     Chicago metropolitan area needs significant new airport 
     capacity. What SOC does oppose, however, is the single-minded 
     focus on expansion at O'Hare--when there is a better, faster, 
     safer, less expensive, and more environmentally-sound 
     alternative: the construction of a South Suburban Airport at 
     Peotone.
       SOC believes that these regional airport development issues 
     are matters to be determined by the Federal Aviation 
     Administration, exercising authority charged to it by law. We 
     do not think that the Congress should decide, through 
     political fiat, what does, or does not make sense for the 
     citizens most directly affected by the Chicago region's 
     airport development needs. Congress has neither the 
     specialized aviation and airport environmental expertise of 
     the FAA, nor the local knowledge necessary to make these 
     judgments. Indeed, for Congress to impose its will in the 
     manner proposed by H.R. 3479, would strip away the vested 
     oversight authority of the State of Illinois with respect to 
     airport construction within its borders, and directly violate 
     the 10th amendment.
       SOC opposes this bill because it seeks to avoid the careful 
     framework established for review of airport development by 
     the FAA in cooperation with state airport sponsors. And, the 
     bill would result in a major curtailment of the critical 
     environmental review process. The O'Hare redevelopment plan 
     is one of the largest airport expansions in aviation history. 
     A project of this size, scope, and cost certainly deserves 
     more than a perfunctory review, which is all the bill would 
     allow. Before turning to a more thorough evaluation of the 
     legislation, I would like to highlight a few of our key 
     concerns.
       H.R. 3479 is unprecedented in the history of civil 
     aviation. It would:
       Declare it to be ``federal policy'' to construct the O'Hare 
     expansion project (expected to cost 15 billion dollars or 
     more). If the City has not commenced construction by 2004, 
     the FAA is required to ``construct the [six] runway design 
     plan as a federal project'';
       Accord the O'Hare runway project special statutory priority 
     over every other airport project in the nation;
       Violate the 10th amendment by preempting the State of 
     Illinois from exercising its lawful oversight authority under 
     its own law;
       Interfere with FAA's statutory responsibility to evaluate 
     the air safety, efficiency and public benefits/costs of 
     airport development projects.
       Short-circuit the environmental review process under NEPA, 
     which is applicable to all other airport construction 
     projects;
       Mandate changes to the Clean Air Act State Implementation 
     Plan (SIP) for the Chicago area by giving O'Hare a blank 
     check to define its own pollution emissions at the expense of 
     other industries.
       For these reasons, SOC strongly urges the Aviation 
     Subcommittee to reject H.R. 3479, and its goal of 
     establishing a unique set of rules, applicable to no other 
     airport in the nation, to ensure construction at O'Hare.


    1. H.R. 3479 CONSTITUTES UNPRECEDENTED INTERFERENCE WITH FAA'S 
  STATUTORY RESPONSIBILITY TO EVALUATE THE AIR SAFETY, EFFICIENCY AND 
             COST/BENEFITS OF AIRPORT DEVELOPMENT PROJECTS.

       SOC is extremely concerned about the shift in decision-
     making responsibilities over airport development that would 
     be brought about by H.R. 3479. The bill would drastically 
     impinge--indeed, nullify--the FAA Administrator's and the 
     Secretary of Transportation's authority to review and approve 
     airport development projects. The exercise by the FAA of 
     independent, objective and expert judgment with respect to 
     airport projects is essential to ensuring that public 
     resources are well-spent to optimize the safety and 
     efficiency of the air transportation system and to protect 
     against harmful environmental consequences--particularly on a 
     highly controverted and extremely costly project such as 
     this. SOC believes that the critical future planning 
     decisions about what Chicago-area airports and which 
     particular runways should be built are best made on the 
     technical merits, rather than through the federal political 
     process.
       Under current law, the FAA and DOT have the responsibility 
     to determine whether any proposed airport development project 
     is consistent with promoting the public interest and the safe 
     and efficient management of the national air transportation 
     system. The proposed legislation would substitute a political 
     judgment by Congress for the expert judgment of the agencies 
     that are charged with that responsibility under the 
     Transportation Code (Title 49 U.S.C. Subtitle VII).
       The legislation would erode the FAA's independent and 
     deliberative role in reviewing the O'Hare project. It would 
     have Congress make the decisions now vested in the FAA, even 
     though details of the development plan have yet to be 
     disclosed, the need for the plan has yet to be documented, 
     the environmental impacts have yet to be determined, and the 
     alternatives and cost-benefits have yet to be evaluated.
       The legislation is unprecedented in the history of 
     aviation. It accords unique and special priority for O'Hare 
     not applicable to any other airport in the country. This is 
     not streamlining; it is redlining for the benefit of a single 
     airport!
       By directing the FAA to give the O'Hare project priority 
     for approvals and expenditure of Federal government 
     resources, other vitally important airport development 
     projects around the country would be adversely impacted. If 
     this legislation is enacted, airport projects at airports 
     such as San Francisco, Dallas/Ft. Worth, Los Angeles, 
     Atlanta, San Jose and Seattle may experience FAA review 
     delays or reduced funding in order to accommodate the 
     preference accorded to O'Hare by Congress.
       DOT and FAA currently have discretion to approve airport 
     development funding for those projects that will ``preserve 
     and enhance capacity, safety and security'' at airports 
     throughout the country. 49 U.S.C. Sec. 47115(c)(1). The 
     Secretary is required to take into account ``the effect the 
     proposed project will have on the overall national air 
     transportation system and capacity.'' 49 U.S.C. 47115(d)(1). 
     In addition, the DOT and the FAA now have the authority to 
     approve changes in an airport's configuration (the airport 
     layout plan) and to review the impacts of such changes.
       The important issues the FAA is required to consider, but 
     which the legislation short-circuits include the following:
       Will the air traffic control airspace resources around 
     O'Hare allow the substantial increase in operations 
     (projected to increase from 900,000 per year to 1.6 million 
     per year)?
       Is the O'Hare expansion plan the best choice to meet the 
     future needs of Chicago region?
       How much will the O'Hare expansion project cost?
       Will six, closely-aligned parallel runways (several of 
     which are only 1400 feet apart) be cost effective to maximize 
     the region's capacity?
       What will be the impact on surrounding neighborhoods of the 
     proposed project?
       Is it possible to tear up two major runways and build four 
     additional runways at the same time O'Hare is attempting to 
     operate at full capacity? What specific, detailed operational 
     plan has been prepared and how does it propose to make these 
     massive alterations while O'Hare continues to function as a 
     key U.S. hub?
       Will the preferences accorded to O'Hare in the legislation 
     effectively preclude the development of Peotone? Will such 
     preference impact future developments at Midway or Milwaukee 
     or other airports in the Great Lakes region?
       What impact would the expenditure of billions of dollars 
     for, and according special

[[Page 14025]]

     Congressional preference to the O'Hare project have on 
     critically needed airport development and aviation security 
     projects for other major airports throughout the nation?
       The legislation would rob the Secretary and the FAA 
     Administrator of their important statutory obligations. It is 
     critical for the expert federal agencies entrusted with 
     responsibility in this area to evaluate and make a 
     determination on whether the crowded skies over O'Hare--with 
     the closely abutting busy airspace used by Midway, Meigs and 
     other very active general aviation airports in the area--are 
     the safest, and most efficient conduit for additional air 
     traffic moving to and from Chicago and through the national 
     air transportation system, as opposed to the development of a 
     new airport in the South Suburban area.
       The legislation would substantially erode the FAA's 
     independent and objective role in reviewing major airport 
     expansion projects. Under the legislation, Congress will make 
     that determination, not the FAA, since Congress would declare 
     that: ``it is critical the Federal Government does all it can 
     to facilitate the redesign of O'Hare'' (Sec. 2(3)), and 
     directs that the FAA ``shall . . . construct the [six] runway 
     design plan as a Federal project'' (Sec. 3(f)).
       Thus, under the legislation, Congress would nullify the 
     FAA's role in determining whether this airport development 
     project is consistent with applicable requirements and 
     reflects the sound expenditure of limited resources and 
     airport development funds. Enactment of this legislation will 
     dictate the construction of additional runways at O'Hare 
     without regard to whether they will actually add capacity to 
     the Chicago region or the national air transportation system.


 The O'Hare Redevelopment Plan would be a National Air Transportation 
                      Mistake of Epic Proportions

       The O'Hare ``runway design plan'', which the legislation 
     will mandate, calls for a massive expansion of O'Hare by 
     creating a total of six parallel runways. However, in terms 
     of well-established FAA safety and efficiency standards, 
     several of the runways are too closely spaced (separated by 
     only 1,400 feet) to allow for simultaneous arrivals or 
     departures. The runways can only be used simultaneously if 
     one runway is used for arrivals and the other is used for 
     departures--and even then only if the weather is good. 
     Whenever cloud cover and visibility conditions require the 
     use of instrument landing procedures (a chronic situation at 
     O'Hare), these closely spaced parallel runways could not be 
     used simultaneously at all. By mandating the construction of 
     the proposed configuration, Congress would abrogate the FAA's 
     existing statutory power to determine whether the proposed 
     runway system is safe and whether it would in fact add 
     capacity to the region.
       The proposed legislation would have Congress make findings 
     that the national air transportation is ``dependent'' on 
     O'Hare and that ``the reliability and efficiency of 
     interstate air transportation for the residents and 
     businesses in many States depend on the efficient processing 
     of air traffic operations at O'Hare.'' (Sec. 2). While the 
     bill's promoters, most notably the City of Chicago, would no 
     doubt prefer that interstate air traffic have no alternative 
     but to flow through O'Hare, in reality, this is far from the 
     truth and there is a better, more efficient alternative.
       Passengers traveling via O'Hare have their option of any 
     number of viable connecting hubs. Rather than trying to cram 
     more flights through O'Hare, SOC believes that the best way 
     to enhance Chicago's role as a pivotal hub in the national 
     air transportation system is through the development of a 
     modern alternate third airport at Peotone. Chicago's large 
     population and economic base makes it an attractive hub, and 
     a new South Suburban airport will attract more air carrier 
     service and more connecting passengers.
       The legislation accords significant preference to O'Hare 
     over the Peotone airport. If, despite the efficiency and 
     safety concerns of the O'Hare project and the superiority of 
     the proposed airport at Peotone, O'Hare is massively 
     expanded, the economic viability of a new airport would be 
     undermined. An expanded O'Hare could make it more difficult 
     to justify a new South Suburban Airport at Peotone, as 
     contemplated in the legislation.
       Thus, the proposed legislation pays lip service to the 
     development of a new airport at Peotone, but in practical 
     effect would thwart the development of a South Suburban 
     Airport. The legislation requires that the FAA ``shall 
     construct the [six] runway design plan a federal project'' if 
     it is not begun by July 1, 2004. No such directive is 
     applicable to Peotone. As a result, the legislation 
     guarantees the expansion of O'Hare but leaves Peotone to 
     whither as an unfunded appendage. Such determinations should 
     be made by the FAA through the exercise of its expertise, not 
     by Congress. Absent the legislative directive, the FAA might 
     well determine to give Peotone a higher priority than O'Hare, 
     based on very real safety, efficiency, public interest and 
     environmental considerations. Under the legislation that 
     would not be possible.
       Worse yet, by prejudging the issue and requiring the 
     mandatory federal construction of the ill-conceived O'Hare 
     six-runway design plan, Congress would be condemning the 
     Chicago region and the national air transportation system to 
     a future of interminable delays. Because of air traffic 
     constraints that will be exacerbated by the O'Hare project, a 
     six-runway O'Hare super-hub would produce the biggest and 
     most delay-prone airport in the country.
       The Achilles heel of the O'Hare redevelopment plan is that 
     the system is guaranteed to collapse in bad weather. Safety 
     standards mandate that the closely-spaced parallel runways 
     could not be used for simultaneous operations when the 
     weather requires pilots to use instrument procedures. This 
     means that half the expensive new concrete poured at O'Hare 
     would effectively be taken out of service exactly when they 
     need it most--to alleviate bad weather backups, which are a 
     leading cause of delays.
       Far from enhancing capacity and efficiency, if Congress 
     were to adopt this legislation it would saddle the national 
     air transportation system with an enormously expensive and 
     delay-prone hub that is, in reality, the worst tool for the 
     job. That is why SOC believes this is a matter best left to 
     the FAA's expert judgment, instead of the legislative 
     process.


 laying new concrete on top of functional existing runways flunks the 
 cost-benefit test, and defeats the federal policy to develop reliever 
                                airports

       There is compelling evidence demonstrating that the 
     development of a third Chicago airport at Peotone would 
     provide more effective capacity expansion for the region, and 
     could be brought on line more quickly, at less cost, with 
     less disruption to existing operations, and with less 
     environmental impacts, than the proposed mandatory 
     development project at O'Hare. Cost estimates released by the 
     State of Illinois indicate that a new six runway airport at 
     Peotone would cost in the vicinity of 5 billion dollars. Cost 
     estimates for new runways at O'Hare are between 1 to 2 
     billion dollars per runway. Chicago itself estimates that 
     terminal expansion at O'Hare would cost another 6 billion 
     dollars, bringing the total tab for the O'Hare expansion 
     extravaganza to a whopping 15 billion dollars. Even this 
     massive figure does not include the additional cost of access 
     roads, parking facilities, and mitigation measures for the 
     immediately impacted communities.
       Given that Peotone would provide substantially more new 
     incremental capacity at substantially less cost, the O'Hare 
     construction plan is a spendthrift nightmare. Under existing 
     law, the FAA is responsible for weighing the ``project 
     benefit and cost''. 49 U.S.C. Sec. 47115(d)(2). Congress 
     added that responsibility to avoid situations in which 
     taxpayer dollars are expended on projects that do not 
     represent the best use of limited airport development funds. 
     Under the required cost-benefit analysis, Chicago would be 
     required to examine various alternatives and consider issues 
     such as whether the addition of new runways at an existing 
     airport is a better or worse investment than building a new 
     airport. SOC submits that the O'Hare construction plan flunks 
     this test.
       The proposed legislation provides a ``quick fix'' to the 
     otherwise fatal cost-benefit problems affecting a large scale 
     redevelopment of O'Hare, by eliminating the FAA's essential 
     ``purpose and need'' evaluation. The FAA is otherwise 
     required to investigate cost-benefit of airport funding 
     projects, and SOC believes that under any such analysis it 
     should find this one unsatisfactory.
       The legislation also contravenes the established federal 
     policy to ``give special emphasis to developing reliever 
     airports.'' 49 U.S.C. Sec. 47101(a)(3). By concentrating an 
     ever-increasing number of airplanes in the finite volume of 
     airspace over O'Hare, Congress would be frustrating the very 
     reliever program it mandated the FAA to promote.
       Another important consideration for airport development 
     funding requires the Secretary to be satisfied that ``the 
     project will be completed without unreasonable delay''. 49 
     U.S.C. Sec. 47106(a)(4). Attempting a massive redevelopment 
     project at one of the busiest airports in the country is a 
     recipe for project delays and massive disruption to the 
     existing air carrier activities at O'Hare.


  ii. h.r. 3479 shortcuts nepa and a host of other statutes that are 
 essential to the protection of the environment and the public health 
                              and welfare

       This is result-driven legislation which has the singular 
     purpose and effect of curtailing meaningful evaluation of the 
     environmental consequences in order to lay runways and 
     pavement at O'Hare. The legislation would shunt aside vital 
     considerations that under current law would otherwise require 
     careful scrutiny by the FAA and other agencies, including 
     such issues as: the tremendous noise impacts over surrounding 
     communities, the massive amounts of ozone and other airborne 
     pollutants that would be emitted into the Chicago-area 
     airmass, the millions of additional gallons in toxic deicing 
     fluid and other chemical runoff that will flow into water-
     ways, and the impact of the project on wetlands, endangered 
     species and other natural resources.
       Even in its current pre-expansion condition, O'Hare is the 
     largest source of toxic emissions and hazardous air 
     pollutants in

[[Page 14026]]

     the State of Illinois. Moreover, monitoring data shows that 
     O'Hare impacts large numbers of Chicago area residents with 
     significant and undesirable noise exposure. Adding hundreds 
     of thousands of new flights will make matters much worse. SOC 
     is extremely concerned that the proposed legislation will 
     effectively preclude further consideration of these important 
     issues, cut off public comment, and curtail thorough 
     evaluation of the public health and environmental 
     considerations NEPA was enacted to protect.
       While the legislation pays lip service to compliance with 
     NEPA, there is simply no way that a project of this scope and 
     scale could be subject to meaningful NEPA review in the scant 
     period of time the legislation allows before the FAA is 
     compelled to begin runway construction ``as a federal 
     project.'' Airport development projects of this magnitude 
     ordinarily take several years to complete the NEPA process, 
     under current law and procedures.
       Thus, while the bill states that implementation of the 
     O'Hare construction plan ``shall be subject to application of 
     Federal laws with respect to environmental protection and 
     environmental analysis including [NEPA]'' (Sec. 3(a)(2)(B)), 
     as a practical matter the construction deadline would make it 
     impossible for FAA to conduct the necessary NEPA review. 
     Courts have held that when Congress imposes a mandatory 
     action under an impossible deadline, NEPA has, in effect, 
     been legislatively overruled. See, Flint Ridge Development 
     Co. v. Scenic Rivers, 426 U.S. 776 (1976). That is exactly 
     what Congress would be doing here, despite token language to 
     the contrary.
       The FAA is the lead agency responsible for coordinating 
     NEPA review of airport construction projects, along with the 
     involvement of other Federal Agencies and the public. In 
     discharging these obligations, the Transportation Code and 
     NEPA charge the FAA with the duty to objectively and 
     independently analyze the proposed airport expansion, and its 
     impact on the environment, without prejudging the outcome.
       Section 3(f) of the bill--which compels the Administrator 
     to begin building the runway development plan at O'Hare by 
     2004 if the City has not begun construction--effectively 
     eliminates that independence. FAA would do all it could to 
     avoid having to assume construction of O'Hare as a federal 
     project. A statutorily-imposed construction ultimatum by 
     Congress would have the effect of forcing the environmental 
     review process to be so truncated as to effectively preclude 
     meaningful evaluation by the FAA of the environmental 
     consequences.
       The massive six-runway redevelopment and expansion plan at 
     O'Hare raises serious and significant adverse environmental 
     questions bearing on air quality, other pollutants, and 
     noise. If an application has significant adverse 
     environmental effects, under the Transportation Code, the FAA 
     Administrator may grant approval ``only after a finding that 
     no possible prudent alternative to the project exists and 
     that every reasonable step has been taken to minimize the 
     adverse effect.'' 49 U.S.C. Sec. 47106(c). The proposed 
     legislation would foreclose consideration of the otherwise 
     legally-required alternatives.
       Indeed, the alternative endorsed by SOC--that of a new 
     South Suburban Airport--can readily be shown to produce far 
     fewer negative environmental impacts. A new airport at 
     Peotone would have an extensive non-residential environmental 
     land buffer to mitigate the noise and air pollution created 
     by the facility. In contrast, the environmental ``buffer'' 
     for O'Hare currently consists of Bensenville, Wood Dale, Elk 
     Grove and a host of other DuPage County communities--a 
     residential ``buffer'' that would be severely negatively 
     impacted if hundreds of thousands of more flights are added 
     at O'Hare.
       It is highly significant that two Chicago area Congressmen 
     from different districts, different political parties, and 
     with different political philosophies--Congressmen Hyde and 
     Congressman Jackson--have come out united against further 
     O'Hare expansion, based, in large part, on the disastrous 
     environmental impacts to the region. Allow me to quote here 
     from their open letter to State and Regional Leaders----
       ``Rather than build an environmentally sound new airport, 
     Chicago wants to add new runways at O'Hare.
       Adding runways at O'Hare would compound what is already an 
     environmental disaster. Even Chicago in its Master Plan 
     acknowledged that adding runways would allow a level of air 
     traffic that would be environmentally unacceptable. Despite 
     this environmental unacceptability, Chicago is aggressively 
     fighting a new airport and is actively pushing the option of 
     new runways at O'Hare. (Hyde/Jackson Open Letter, October, 
     1997 at 9.)
       These are precisely the type of critical environmental 
     issues that NEPA requires to be thoroughly examined prior to 
     a major federal action like the O'Hare redevelopment project. 
     However, NEPA and its companion environmental statutes would 
     be effectively gutted by the proposed legislation. Viable, 
     prudent, and indeed more desirable environmental alternatives 
     exist than re-developing an inherently delay-prone airport in 
     close proximity to the City. This legislation eliminates the 
     FAA's independence and forces the FAA, as the lead agency on 
     this project, to short-circuit its environmental review.


  A. NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) (42 U.S.C. Sec. 4321 et 
seq.) AND ITS COMPANION ENVIRONMENTAL STATUTES WOULD BE IGNORED BY THE 
                          PROPOSED LEGISLATION

       NEPA would either be eliminated or so truncated by the 
     legislation as to preclude meaningful review by the FAA 
     Administrator, coordinating federal agencies and the public. 
     NEPA is the nation's core environmental statute that requires 
     Federal agencies to give careful consideration to the 
     potential environmental impacts of the project, to consider 
     practical alternatives to the project, and to give the public 
     adequate opportunity to participate in the review process.
       The Department of Transportation--in its May 21, 2001 
     Report To Congress on Environmental Review of Airport 
     Projects--recognizes the important role of NEPA and public 
     participation as critical to the airport development process:
       ``[NEPA] requires federal agencies to prepare 
     [Environmental Impact Studies] for projects significantly 
     affecting the environment. Since most new commercial service 
     runways and major runway expansions produce significant 
     environmental impacts, an EIS is usually required. (Page iii)
       ``Public involvement is an essential part of the 
     environmental review process. . . . There is usually a high 
     degree of public interest in airport projects, including a 
     certain amount of public opposition.'' (Page v).
       ``[P]ublic opposition to airport projects continues to 
     rise. The NIMBY effect should not be dismissed as an 
     environmental fringe element. It is based on real 
     environmental concerns and has an increasingly broad-based 
     constituency.'' (Page iii).
       H.R. 3479 is diametrically opposed to the objectives of 
     NEPA and the important public policies recognized by the 
     Department of Transportation in its Report. For starters, the 
     airport environmental review process for a runway expansion 
     project of this magnitude requires the preparation of an EIS, 
     as well as the opportunity for substantial public 
     involvement. That cannot and will not happen under the 
     timetable contemplated by the proposed legislation, and the 
     public's right to participate in the NEPA process would be 
     rendered meaningless,
       In addition to the FAA's express NEPA obligations, the 
     Clean Air Act further authorizes the EPA Administrator to 
     conduct a NEPA review on federal projects for construction 
     and major federal actions that are subject to NEPA. If the 
     EPA Administrator determines that the proposed action is 
     unsatisfactory from the standpoint of public health and 
     welfare, or environmental quality, she must make public that 
     determination and refer the matter to the Council on 
     Environmental Quality for mediation. The mandatory 2004 
     Federal construction deadline under the legislation for the 
     O'Hare project forecloses meaningful review.


B. STATE IMPLEMENTATION PLAN (SIP) CONFORMITY DETERMINATION (CLEAN AIR 
                                  ACT)

       The Chicago O'Hare area is classified as a severe 
     nonattainment area for ozone, and parts of the Chicago region 
     are designated as moderate nonattainment for particulate 
     matter. Without amendment of the Clean Air Act, the O'Hare 
     expansion program would face difficult or insurmountable 
     burdens under that statute.
       O'Hare is a huge polluter, and will be far worse if 
     expanded to nearly double the level of flight operations. Air 
     pollution from O'Hare consists of burned and unburned jet 
     fuel aerosols containing dozens of carcinogenic organic 
     compounds--including Benzene and Formaldehyde. If flights are 
     expanded from 900,000 to 1.6 million annually, O'Hare and its 
     immediately surrounding communities will experience an 
     inevitable and unacceptably high concentration of Ozone and a 
     host of toxic pollutants hanging in toxic cloud over O'Hare. 
     (By contrast, a South Suburban Airport would have a 
     significant land buffer to assist in the dispersal of these 
     toxic pollutants and to keep them away from residential 
     areas. No such buffer exists at O'Hare.)
       As required by Section 176 of the Clean Air Act, the State 
     of Illinois has, after extensive public consultation and 
     comment, developed a State Implementation Plan (SIP), which 
     is the State's plan to come into compliance with the national 
     air quality standards under the Clean Air Act. The SIP 
     reflects a careful balance between the protection of the 
     public health and welfare from air pollution, on the one 
     hand, and the need for commerce and other activities, on the 
     other hand. Each Federal agency involved in an airport 
     expansion project must make a determination that the proposed 
     action conforms to the SIP.
       Because of the huge increase in air pollution, there is a 
     major inherent conflict between the existing SIP and O'Hare 
     expansion. Under normal SIP processes, the City of Chicago, 
     the airlines, the State of Illinois and its various agencies, 
     the U.S. EPA, the FAA, other Federal agencies, and the public 
     would work together to amend the SIP to accommodate O'Hare's 
     needs while balancing competing interests. H.R. 3479 
     completely avoids that consultative and deliberative process.
       If this legislation is enacted, the City is empowered to 
     define O'Hare's SIP allocation,

[[Page 14027]]

     without the normal public participation process and without 
     the participation of the State and Federal agencies. 
     Moreover, the legislation directs the Administrator of the 
     EPA to amend the SIP to accommodate the O'Hare's expansion 
     (Section 3 (a)(5): ``. . . the Environmental Protection 
     Agency shall forthwith use its powers under the Clean Air Act 
     respecting approval and promulgation of implementation plans 
     to cause or promulgate a revision of such implementation plan 
     sufficient for the runway redesign plan to satisfy the 
     requirements of section 176(c) of the Clean Air Act.'') This 
     is unprecedented legislation. There is no public process, no 
     balancing, only O'Hare claiming for itself whatever level of 
     emissions it wants.
       Under the proposed statute, O'Hare's needs (as determined 
     by the City) are accepted as given, and the EPA would force 
     other institutions to reduce their emissions pursuant to the 
     EPA's judgment on how to reach SIP goals. This fails to allow 
     other businesses and the public any opportunity to contribute 
     to or participate in the process. Power companies, railroads, 
     truckers, buses, heavy industry, and the Peotone Airport 
     will, in all likelihood, have their target emissions cut by 
     the EPA to satisfy O'Hare's runway plan. And, because this is 
     a legislative mandate, none of those other vitally interested 
     parties will be allowed to challenge O'Hare's claims or the 
     EPA Administrator's solutions.
       The proposed legislation would radically alter the SIP and 
     would drastically impact other industries. The statute before 
     Congress would do tremendous damage to the existing processes 
     and the other businesses impacted by this unique power 
     granted the City.


         C. OTHER IMPACTED ``CROSS-CUTTING'' ENVIRONMENTAL LAWS

       NEPA is the primary statutory tool for analyzing the impact 
     of airport expansion on the environment. In addition, 
     Congress has passed a number of environmental laws addressing 
     federal responsibility for recognizing and protecting special 
     national resources. These laws, referred to as ``cross-
     cutting'' laws, require Federal agencies to consider the 
     impact that their programs and some private actions might 
     have on such national resources. This consideration must be 
     documented as part of the agencies' decisionmaking process. 
     Many of these laws require the lead Federal agencies to 
     consult with other federal and state agencies having legal 
     authority over the proposed action or special expertise 
     relevant to the proposed action.
       Significantly, Congress has determined that standards and 
     processes embodied in each of these Federal laws should be 
     applied to every airport expansion. Some of the most obvious 
     environmental criteria that would be eviscerated by the 
     proposed O'Hare expansion legislation are set forth below.


           1. Endangered Species Act, 16 U.S.C. 1531 et seq.

       Airport expansion projects frequently raise Endangered 
     Species Act concerns because airports are favored habitats 
     for certain endangered and threatened birds of prey. If 
     review of the proposed action reveals the potential for an 
     adverse impact, the FAA must obtain an opinion from the Fish 
     and Wildlife Service regarding the impact of the project on 
     the endangered species or its habitat. The Endangered Species 
     Act prohibits the project from proceeding unless the agencies 
     agree on alternatives to the project to eliminate the adverse 
     impact.
       It will be difficult or impossible, in the time allowed, 
     for the FAA and the Fish and Wildlife Service to perform the 
     analysis of the potential impacts that O'Hare expansion would 
     have on endangered species.


               2. Clean Water Act, 33 U.S.C. 1251 et seq.

       The Clean Water Act prohibits the discharge of dredged or 
     fill material into wetlands except in compliance with a 
     permit issued by the Army Corps of Engineers. Federal 
     agencies are required to identify any wetlands or other 
     navigable waters of the United States that might be affected 
     by a project.
       In the normal course of any other airport project, relevant 
     Federal and State agencies would contribute their comments 
     and judgment as to whether a proposed project would put wet-
     lands at risk. If enacted, this legislation would result in 
     the approval of the O'Hare project without consideration of 
     these potential impacts in accordance with established 
     statutory standards.


                 3. Floodplains (Executive Order 11988)

       Executive Order 11988 requires Federal agencies to avoid, 
     to the extent possible, the adverse impacts associated with 
     the occupancy and modification of floodplains and to avoid 
     direct and indirect support of floodplain development 
     wherever there is a practicable alternative.
       For all airport development projects, the FAA is required 
     to: (1) determine if the proposed project is located in a 
     floodplain; (2) identify and evaluate practicable 
     alternatives to the proposed project; (3) develop mitigation 
     measures if alternatives are not practicable; and (4) 
     encourage public participation in the review process.
       If enacted, this legislation would mandate implementation 
     of the six-runway O'Hare project without even passing 
     consideration of whether floodplains would be affected and 
     measures that could be taken to reduce the impact of the 
     project.


     III. H.R. 3479 WOULD VIOLATE THE TENTH AMENDMENT OF THE U.S. 
                              CONSTITUTION

       SOC believes that it is inappropriate and unlawful for the 
     Federal Congress to dictate to the State of Illinois which 
     airports and what runways to construct within its borders. 
     Decisions involving airport and infrastructure development 
     have historically been delegated to the states. H.R. 3479 
     would strip the State of Illinois of its vested authority to 
     delegate and authorize the City of Chicago to construct 
     airports in the State. Doing so would be a clear-cut 
     violation of the tenth amendment,
       Under the framework of federalism established by the 
     Constitution, Congress is without power to dictate to the 
     States how the States delegate power, or to limit the 
     delegation of that power, to their political subdivisions. 
     Unless and until Congress takes over complete responsibility 
     to build airports, airports will continue to be developed by 
     States, or their delegated agents, as an exercise of State 
     power and law. Compliance by the political subdivision to 
     which the State delegates authority to construct airports 
     with the oversight conditions imposed by the State is an 
     essential element of State authority and power.
       The proposed legislation would strip away such oversight 
     authority, fundamentally intruding upon the State's sovereign 
     authority to take action under its own laws. The legislation 
     would prohibit the State from restricting or limiting the 
     delegated exercise of State power by the State's political 
     subdivision. It would nullify the decision of the State of 
     Illinois legislature allocating authority with respect to 
     construction of airports located within the State, 
     particularly the limitations and conditions imposed by the 
     State on the delegation of that power to the City. The law is 
     clear that Congress does not have the power to intrude or 
     interfere with a State's decision as to how to allocate State 
     power.
       Under the U.S. Constitution, the State's authority to 
     create, modify, condition, and impose limitations on the 
     structure and powers of the State's political subdivisions is 
     a matter left the exclusive control of the States.
       ``Municipal corporations are political subdivisions of the 
     State, and created as convenient agencies for exercising such 
     of the governmental powers of the State as may be entrusted 
     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 respect 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 v. United States, 653 F.2d 292, 297 
     (7th Cir. 1981) (quoting Hunter v. City of Pittsburgh, 207 
     U.S. 161, 178 (1907) (emphasis added).
       The Illinois State law delegating powers to construct or 
     alter airports and runways are subject to the requirements of 
     the Illinois Aeronautics Act. This Act requires that the 
     State approve any alterations of the airport. The proposed 
     legislation is an attempt to remove this State oversight in 
     violation of the Tenth Amendment. The law would commandeer 
     the City of Chicago, which is an instrumentality of the State 
     of Illinois, to do what the State has prohibited it from 
     doing: i.e. expanding the airport without receiving a permit 
     from the State. Under State law, any airport construction 
     without the required State permit is unlawful.
       Congress does not have the authority to interfere with the 
     State of Illinois's determination as to how to allocate State 
     power to the City of Chicago. By impairing the State's 
     delegation, the legislation would have the effect of 
     undermining the delegation of the authority from the State to 
     the City and thereby extinguish that delegation. As a result, 
     any effort by the City to build new runways would be without 
     the required State delegation and ultra vires under State 
     law.
       The national implications of this legislation are profound 
     and go well beyond Illinois and implicate States throughout 
     the nation. Most States have laws providing for some level of 
     oversight over airport expansions, including State 
     environmental laws and permitting requirements. Twenty-six 
     states have laws requiring local airport authorities to 
     submit applications for federal funds through the state, 
     rather than directly to the FAA. This legislation would set a 
     dangerous precedent nullifying State oversight laws.


                             IV. CONCLUSION

       In conclusion, SOC strongly urges the Subcommittee to 
     reject H.R. 3479. This legislation would dismantle the 
     careful federal framework established to govern the review

[[Page 14028]]

     and approval of airport development projects. The FAA must 
     have the unfettered ability to exercise its expert 
     independent and objective expert oversight functions over 
     airport development projects, and to carry out its 
     environmental review responsibilities under NEPA, to make 
     sure that whatever airport development is undertaken will be 
     the best possible solution for the Chicago region and the 
     national air transportation system.
       The proposed legislation ties the FAA's hands by removing 
     the agency's neutrality and discretion by forcing it to rush 
     headlong toward a mandatory construction of O'Hare by 2004. 
     SOC believes that a rational and reasoned evaluation will 
     establish that the development of a new South Suburban 
     Airport is superior to O'Hare in every respect--that a new 
     airport at Peotone would offer more capacity, can be built at 
     less cost, more quickly, and with fewer adverse environmental 
     consequences. These are extremely important considerations 
     which need to be resolved though the established federal 
     review process. Congress not attempt to resolve them here by 
     political fiat.
                                  ____


                   South Suburban Airport Fact Sheet

       Reasons for building of a regional airport in Chicago's 
     south suburbs:


                                  jobs

       The South Suburban Airport would create an estimated 
     236,000 permanent jobs in the next 20 years. Most of these 
     would be good-paying jobs with family health insurance and 
     retirement benefits--jobs that stabilize communities and 
     rebuild local economies.


                       regional air travel needs

       Air travel is expected to double in the next 20 years. 
     Chicago's existing airports cannot handle that growth. O'Hare 
     has reached operational capacity and Midway will reach 
     capacity by 2005. Without additional capacity, airlines will 
     be forced to move their hubs--and jobs--elsewhere.


                            economic equity

       The third airport is an urbanist's dream--solving multiple 
     problems with one investment. While the 1990s has been good 
     to many, Chicago's old South Side/south suburban industrial 
     hub has lost jobs and experienced negative growth--resulting 
     in the downward spiral of lost investment, soaring property 
     taxes, declining schools and rising crime. The airport would 
     provide economic opportunities for hundreds of thousands of 
     people, mostly minorities, who have been left behind.


                              lower fares

       A third airport would reduce fares. Fares to Chicago today 
     average 34 percent higher than most major U.S. cities because 
     of a lack of competition at O'Hare. American and United 
     Airlines practically monopolize the airport, controlling 89 
     percent of all flights. A new airport would increase 
     competition among carriers, which often leads to lower fares.


                              no new taxes

       Airport construction would be paid by private investors 
     and/or the airlines using the facility--not by taxpayers. 
     Indeed, airports are cash cows that generate millions of tax 
     dollars, spur investment, stabilize communities, shrink 
     welfare rolls and improve quality of life.


                      won't hurt midway or o'hare

       This airport would relieve, not compete with, existing 
     airports. It would handle ovet-flow traffic from O'Hare and 
     Midway. The third airport would expand, as needed, to 
     accommodate future demands that O'Hare and Midway cannot 
     meet.
                                  ____


                 Why You Should Vote `No' on H.R. 3479

       Don't be fooled into thinking this legislation will benefit 
     your constituents
       H.R. 3479 never should have been brought up under 
     suspension. It is too controversial, What are proponents 
     trying to hide by limiting debate?
       2. H.R. 3479 Violates state's rights. The governor and 
     mayor never consulted the Illinois General Assembly nor did 
     they even try to obtain a permit from the Illinois Department 
     of Transportation to expand O'Hare. Why? See #3 and #4. Also, 
     think this legislation won't set a precedent that could rob 
     your state legislature of its power to decide local airport 
     matters? Think again.
       3. H.R. 3479 Will Cost $15 to $20 billion, Not the 6.6 
     billion that the Mayor and governor are claiming. Do you 
     really think there will be money left over to expand your 
     local airport once O'Hare is expanded? Think again. A third 
     suburban airport can be built CHEAPER and FASTER than O'Hare. 
     Let's think ahead and spend the nation's money wisely.
       4. H.R. 3479 will destroy up to 1,500 homes and an untold 
     number of businesses once all of the safety buffers, ring 
     roads etc. are in place. Don't believe the claims that ONLY 
     533 homes will be destroyed. These homes are occupied by 
     senior citizens, young families and Hispanic families--all of 
     whom won't be able to find quality, affordable housing in 
     DuPage County if their homes are bulldozed. Quality of life 
     for 1 million residents surrounding O'Hare will also be 
     destroyed.
       5. H.R. 3479 IS a public health treat. O'Hare expansion = 
     increased air and noise pollution, increased cancer rates . . 
     . the list goes on.
     Henry Hyde.
     Jesse Jackson, Jr.

  Mr. Speaker, I yield 2 minutes to the gentleman from Illinois (Mr. 
Hyde).
  Mr. HYDE. Well, at least we have worked it out of my friend the 
gentleman from Illinois (Mr. Lipinski) why this city will not get a 
certificate of approval from the State. He said because the governor 
only has a year left, and they just do not know what another governor 
might want to do. They want to deprive the succeeding Governor of 
having any say on this massive expansion.
  Well, I would like to know who is going to pay for this. We still did 
not get an answer on that. If United and American are going to buy 
these bonds that will be issued, why would they not demand their 
present monopoly, or duopoly? These are questions we do not have any 
answers to.
  The Illinois Municipal Code is what empowers the city. They have no 
more nor any less rights to do anything unless conveyed upon them 
through the legislature. This bill seeks to sidestep the legislature 
and have Washington decide a local issue.
  Every Republican I have ever known campaigns on the theory that we 
are going to cut the Federal Government down to size. Well, I would say 
to Members, do not ever say that, if you vote for this bill. This is a 
massive transfer of power to Congress and debilitates, weakens, ignores 
local government.
  Mr. JACKSON of Illinois. Mr. Speaker, I yield back the balance of our 
time.
  Mr. MICA. Mr. Speaker, I am pleased to yield 3 minutes to the 
gentleman from Illinois (Mr. Kirk), who is one of the prime sponsors of 
this legislation.
  Mr. KIRK. Mr. Speaker, I thank my chairman for yielding me time, and 
I rise in strong support of this legislation.
  Mr. Speaker, we have been delayed in the passage of this very 
important bill, largely due to the respect and admiration we have for 
one Member of this House, the gentleman from Illinois (Mr. Hyde). He is 
a hero to me, and our communities and our country owe him a great deal 
of gratitude for the service he has given to the Nation.
  The Chicago Tribune called the gentleman from Illinois (Mr. Hyde) a 
``Lion in Winter,'' but the last week has proved that he is still a 
tiger.
  But this legislation is still required, for Chicago and for the 
Nation. America's busiest airport is broken. Passengers using the 
airfield have only a 60 percent chance of leaving on time, and experts 
say that when O'Hare gets a cold, most airports get the flu. Tie-ups 
strand Americans everywhere, caused by an outdated design set in place 
by political gridlock.
  That gridlock has been broken. Illinois is one of two States that 
requires a governor's signature before modernizing an airfield. We have 
that signature.
  In an historic agreement, our Republican Governor and Chicago's 
Democratic Mayor agreed to the first modernization of the airfield 
since 1972. This bill simply ratifies an agreement made by local 
leaders who showed leadership.
  In these uncertain times, the modernization of this airfield unlocks 
over $6 billion in new work, overwhelmingly paid for by private funds. 
Over 100,000 new jobs will be created, in an unprecedented shot in the 
arm for Illinois' economy.
  The new design builds a safer O'Hare, eliminating intersecting 
runways. The removal of north-south runways dramatically reduces the 
sound of aircraft over Arlington Heights, Palatine and Mt. Prospect.
  The bill also highlights the importance of NASA's Quiet Aircraft 
Technology Program. Leaders in this House and NASA helped eliminate the 
noisy Stage II 727 aircraft from O'Hare. We set an aggressive Stage III 
noise reduction standard now in the air and will soon require even 
quieter Stage IV aircraft.
  Mr. Speaker, I want to compliment the leaders of the O'Hare Noise 
Compatibility Commission and their leaders, Mayor Arlene Mulder and 
Mayor

[[Page 14029]]

Rita Mullins, for their ongoing work and commitment to the quality of 
life issues in our communities.
  Mr. Speaker, this is bipartisan legislation, strongly supported by 
the gentleman from Illinois (Speaker Hastert), the minority leader, the 
gentleman from Missouri (Mr. Gephardt), the Chamber of Commerce and the 
AFL-CIO. Even the Sierra Club has no objection to its passage.
  Given this unique political alignment, it is clear that this plan's 
time has come. I urge adoption of the legislation.
  Mr. COSTELLO. Mr. Speaker, I rise today in support of H.R. 3479, the 
National Aviation Capacity Act. This legislation was introduced by my 
good friend, Mr. Lipinski, and I would like to thank him for his hard 
work. I am pleased to join him as a cosponsor of this legislation.
  O'Hare is a tremendously important airport in not only to Chicago and 
the Midwest, but also our entire national aviation system. It recently 
reclaimed the title of the world's busiest airport and is the only 
airport to serve as a hub for two major airlines. O'Hare serves 190,000 
travelers and operates 2,700 flights daily, employs 50,000 people and 
generates $37 billion in annual economic activity.
  However, O'Hare needs to be redesigned to meet today's demands. It is 
laid out with seven runways, six of which intersect at least one other 
runway. The modernization plan would add one new runway. The seven 
existing runways will be reconfigured to include a southern runway for 
a total of eight runways, of which six would be parallel. These 
improvements would have a significant impact on reducing delays and 
cancellations: bad weather delays would decrease by 95 percent and 
overall delays would decrease by 79 percent.
  On December 5, 2001, Mayor Daley and Governor Ryan reached a historic 
agreement to expand and improve O'Hare airport. The agreement would 
modernize O'Hare, create western access to the airport, provide 
additional funds for soundproofing home and schools near O'Hare, move 
forward with the construction of a third Chicago airport at the Peotone 
site and keep Meigs Field open until at least 2006, and likely until 
2026.
  H.R. 3479 would simply codify the deal so that a future governor does 
not rescind the agreement. Illinois is in a unique situation because 
the governor does have veto power. If this legislation is not enacted, 
it is possible that a future governor could undo all the hard work that 
the current governor and mayor of Chicago have done to reach this 
agreement.
  There is some concern that this legislation sets a precedent by 
involving the federal government or creating a short-cut around 
environmental laws. Again, O'Hare is an exceptional situation which 
requires this limited federal action. Other cities and airport 
authorities do not have a governor with veto authority over this issue. 
The city of Chicago does not want the federal government to take over 
the modernization of O'Hare but the language is included in case the 
State delays the State Implementation Plan (SIP) of the Clean Air Act 
to slow down the project. The language granting priority consideration 
for a Letter of Intent from the FAA for Peotone is no different than 
language that can be found in any Transportation Appropriations bill.
  Regarding environmental concerns, the bill says that implementation 
shall be subject to federal laws with respect to environmental 
protection and analysis, and that the environmental reviews will go 
forward in an expedited way. There is no attempt to go around existing 
state or federal environmental laws, and this legislation has the 
support of many environmental groups.
  Mr. Speaker, this legislation will allow the much-needed expansion of 
O'Hare to move forward. I urge my colleagues to join me in supporting 
this bill.
  Mr. MICA. Mr. Speaker, I yield back the balance of our time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Florida (Mr. Mica) that the House suspend the rules and 
pass the bill, H.R. 3479, as amended.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds of 
those present have voted in the affirmative.
  Mr. JACKSON of Illinois. Mr. Speaker, on that I demand the yeas and 
nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the 
Chair's prior announcement, further proceedings on this motion will be 
postponed.

                          ____________________