[Congressional Record (Bound Edition), Volume 148 (2002), Part 9]
[House]
[Pages 12832-12879]
[From the U.S. Government Publishing Office, www.gpo.gov]




            NATIONAL AVIATION CAPACITY EXPANSION ACT OF 2002

  Mr. KIRK. Mr. Speaker, I move to suspend the rules and pass the bill 
(H.R. 3479) to expand aviation capacity in the Chicago area, as 
amended.
  The Clerk read as follows:

                               H.R. 3479

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

             TITLE I--NATIONAL AVIATION CAPACITY EXPANSION

     SEC. 101. SHORT TITLE.

       This title may be cited as the ``National Aviation Capacity 
     Expansion Act of 2002''.

[[Page 12833]]

     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, may alleviate congestion and 
     provide additional capacity in the greater Chicago 
     metropolitan region. Like the O'Hare airport expansion 
     proposal, expansion efforts by Gary/Chicago and Greater 
     Rockford airports should receive full consideration by the 
     Federal Aviation Administration under standard procedures for 
     approving and funding an airport capacity improvement 
     project, including all applicable safety, utility and 
     efficiency, and environmental reviews.

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

       (a) Prohibition.--In furtherance of the purpose of this Act 
     to achieve significant air transportation benefits for 
     interstate and foreign commerce, if the Federal Aviation 
     Administration makes, or at any time after December 5, 2001 
     has made, a grant to the city of Chicago, Illinois, with the 
     approval of the State of Illinois for planning or 
     construction of runway improvements at O'Hare International 
     Airport, the State of Illinois, and any instrumentality or 
     political subdivision of the State, are prohibited from 
     exercising authority under sections 38.01, 47, and 48 of the 
     Illinois Aeronautics Act (620 ILCS 
     5/) to prevent, or have the effect of preventing--
       (1) further consideration by the Federal Aviation 
     Administration of an O'Hare airport layout plan directly 
     related to the agreement reached by the State and the city on 
     December 5, 2001, with respect to O'Hare;
       (2) construction of projects approved by the Administration 
     in such O'Hare airport layout plan; or
       (3) application by the city of Chicago for Federal airport 
     improvement program funding for projects approved by the 
     Administration and shown on such O'Hare airport layout plan.
       (b) Applications for Federal Funding.--Notwithstanding any 
     other provision of law, the city of Chicago is authorized to 
     submit directly to the Federal Aviation Administration 
     without the approval of the State of Illinois, applications 
     for Federal airport improvement program funding for planning 
     and construction of a project shown on an O'Hare airport 
     layout plan directly related to the agreement reached on 
     December 5, 2001, and to accept, receive, and disburse such 
     funds without the approval of the State of Illinois.
       (c) Limitation.--If the Federal Aviation Administration 
     determines that an O'Hare airport layout plan directly 
     related to the agreement reached on December 5, 2001, will 
     not be approved by the Administration, subsections (a) and 
     (b) of this section shall expire and be of no further effect 
     on the date of such determination.
       (d) Western Public Roadway Access.--As provided in the 
     December 5, 2001, agreement referred to in subsection (a), 
     the Administrator of the Federal Aviation Administration 
     shall not consider an airport layout plan submitted by the 
     city of Chicago that includes the runway redesign plan, 
     unless the airport layout plan includes public roadway access 
     through the existing western boundary of O'Hare to passenger 
     terminal and parking facilities located inside the boundary 
     of O'Hare and reasonably accessible to such western access. 
     Approval of western public roadway access shall be subject to 
     the condition that the cost of construction be paid for from 
     airport revenues consistent with Administration revenue use 
     requirements.
       (e) Noise Mitigation.--As provided in the December 5, 2001, 
     agreement referred to in subsection (a), the following apply:
       (1) Approval by the Administrator of an airport layout plan 
     that includes the runway redesign plan shall require the city 
     of Chicago to offer acoustical treatment of all single-family 
     houses and schools located within the 65 DNL noise contour 
     for each construction phase of the runway redesign plan, 
     subject to Administration guidelines and specifications of 
     general applicability. The Administrator may not approve the 
     runway redesign plan unless the city provides the 
     Administrator with information sufficient to demonstrate that 
     the acoustical treatment required by this paragraph is 
     feasible.
       (2)(A) Approval by the Administrator of an airport layout 
     plan that includes the runway

[[Page 12834]]

     redesign plan shall be subject to the condition that noise 
     impact of aircraft operations at O'Hare in the calendar year 
     immediately following the year in which the first new runway 
     is first used and in each calendar year thereafter will be 
     less than the noise impact in calendar year 2000.
       (B) The Administrator shall make the determination 
     described in subparagraph (A)--
       (i) using, to the extent practicable, the procedures 
     specified in part 150 of title 14, Code of Federal 
     Regulations;
       (ii) using the same method for calendar year 2000 and for 
     each forecast year; and
       (iii) by determining noise impact solely in terms of the 
     aggregate number of square miles and the aggregate number of 
     single-family houses and schools exposed to 65 or greater 
     decibels using the DNL metric, including only single-family 
     houses and schools in existence on the last day of calendar 
     year 2000. The Administrator shall make such determination 
     based on information provided by the city of Chicago, which 
     shall be independently verified by the Administrator.
       (C) The conditions described in this subsection shall be 
     enforceable exclusively through the submission and approval 
     of a noise compatibility plan under part 150 of title 14, 
     Code of Federal Regulations. The noise compatibility plan 
     submitted by the city of Chicago shall provide for compliance 
     with this subsection. The Administrator shall approve 
     measures sufficient for compliance with this subsection in 
     accordance with procedures under such part 150. The United 
     States shall have no financial responsibility or liability if 
     operations at O'Hare in any year do not satisfy the 
     conditions in this subsection.
       (f) Report to Congress.--If the runway redesign plan 
     described in this section has not received all Federal, 
     State, and local permits and approvals necessary to begin 
     construction by December 31, 2004, the Administrator shall 
     submit a status report to the Committee on Commerce, Science, 
     and Transportation of the Senate and the Committee on 
     Transportation and Infrastructure of the House of 
     Representatives within 120 days of such date identifying each 
     permit and approval necessary for the project and the status 
     of each such action.
       (g) Judicial Review.-- An order issued by the 
     Administrator, in whole or in part, under this section shall 
     be deemed to be an order issued under part A of subtitle VII 
     of title 49, United States Code, and shall be reviewed in 
     accordance with the procedure in section 46110 of such title.
       (h) Definition.--In this section, the terms ``airport 
     layout plan directly related to the agreement reached on 
     December 5, 2001'' and ``such airport layout plan'' mean a 
     plan that shows--
       (1) 6 parallel runways at O'Hare oriented in the east-west 
     direction with the capability for 4 simultaneous independent 
     visual aircraft arrivals in both directions, and all 
     associated taxiways, navigational facilities, and other 
     related facilities; and
       (2) closure of existing runways 14L-32R, 14R-32L and 18-36 
     at O'Hare.

     SEC. 104. CLEAN AIR ACT.

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

     SEC. 105. MERRILL C. MEIGS FIELD.

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

[[Page 12835]]

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

     ``Sec. 47172. Categorical exclusions

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

     ``Sec. 47173. Access restrictions to ease construction

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

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

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

     ``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

[[Page 12836]]

     shall send a copy of the petition to the Secretary or the 
     head of any other Federal agency involved. The Secretary or 
     the head of such other agency shall file with the court a 
     record of any proceeding in which the order was issued.
       ``(c) Authority of Court.--When the petition is sent to the 
     Secretary or the head of any other Federal agency involved, 
     the court has exclusive jurisdiction to affirm, amend, 
     modify, or set aside any part of the order and may order the 
     Secretary or the head of such other agency to conduct further 
     proceedings. After reasonable notice to the Secretary or the 
     head of such other agency, the court may grant interim relief 
     by staying the order or taking other appropriate action when 
     good cause for its action exists. Findings of fact by the 
     Secretary or the head of such other agency are conclusive if 
     supported by substantial evidence.
       ``(d) Requirement for Prior Objection.--In reviewing an 
     order of the Secretary or the head of any other Federal 
     agency under this section, the court may consider an 
     objection to the action of the Secretary or the head of such 
     other agency only if the objection was made in the proceeding 
     conducted by the Secretary or the head of such other agency 
     or if there was a reasonable ground for not making the 
     objection in the proceeding.
       ``(e) Supreme Court Review.--A decision by a court under 
     this section may be reviewed only by the Supreme Court under 
     section 1254 of title 28.
       ``(f) Order Defined.--In this section, the term `order' 
     includes a record of decision or a finding of no significant 
     impact.

     ``Sec. 47178. Definitions

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

             ``SUBCHAPTER III--AIRPORT PROJECT STREAMLINING

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

     SEC. 205. GOVERNOR'S CERTIFICATE.

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

     SEC. 206. CONSTRUCTION OF CERTAIN AIRPORT CAPACITY PROJECTS.

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

     SEC. 207. LIMITATIONS.

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

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Illinois (Mr. Kirk) and the gentleman from Illinois (Mr. Lipinski) each 
will control 20 minutes.
  Mr. JACKSON of Illinois. Mr. Speaker, I seek the time in true 
opposition to the bill.
  The SPEAKER pro tempore. The Chair would inquire if the gentleman 
from Illinois (Mr. Lipinski) is opposed to the motion.
  Mr. LIPINSKI. No, Mr. Speaker, I am not.
  The SPEAKER pro tempore. Under clause 1(c) of rule XV, the Chair 
recognizes the gentleman from Illinois (Mr. Jackson) to control the 
time in opposition to the motion.
  The Chair recognizes the gentleman from Illinois (Mr. Kirk).
  Mr. KIRK. Mr. Speaker, out of deference to my friend and colleague, 
the gentleman from Illinois (Mr. Lipinski), I would like him to control 
10 minutes of the time available to me during the debate.
  The SPEAKER pro tempore. Without objection, the gentleman from 
Illinois (Mr. Lipinski) will control 10 minutes of the time allotted to 
the gentleman from Illinois (Mr. Kirk) for this debate.
  There was no objection.
  Mr. KIRK. Mr. Speaker, I yield myself 2 minutes.
  Mr. Speaker, I am a proud cosponsor of this legislation. I want to 
thank the gentleman from Illinois (Mr. Lipinski) for authoring it and 
Speaker Hastert for calling it to the floor.
  O'Hare is our Nation's busiest airport. More passengers use O'Hare 
International Airport than New York's LaGuardia, Washington's Reagan, 
and Boston's Logan Airports combined. O'Hare is an engine of economic 
growth, affecting jobs and income for thousands of Illinois families. 
Experts say when O'Hare gets a cold, other airports get pneumonia. 
Delays at O'Hare leave travelers stranded around the world. Today, 
scheduled departures at O'Hare have only a two-thirds chance of 
actually leaving on time. Without modernization, air travelers will 
continue to be delayed and Chicago's economy will stall.
  This legislation does not impose a Washington solution. Illinois is 
one of only two States that requires the Governor's approval for runway 
modification. We have that approval. This legislation ratifies a 
historic agreement between Chicago's Democratic mayor and the 
Republican Governor of Illinois. It represents a local agreement made 
by elected officials who showed leadership.
  Enactment of this legislation unlocks over $6 billion in economic 
development, overwhelmingly paid for from private, not public, funds. 
The new airport will use parallel runways that are safer than the 
intersecting runways we use today. The new plan will help reduce 
airport noise over Arlington Heights, Mount Prospect and Palatine. To 
the leaders of the O'Hare Noise Compatibility Commission, Mayor Arlene 
Mulder and Mayor Rita Mullins, our plan opens the way for more work on 
enhanced noise control programs, soundproofing for schools, and 
research into super quiet Stage IV aircraft, issues for which they have 
fought for years.
  Our plan upholds environmental safeguards and improves the quality of 
life for people in northern Illinois by reducing noise and making the 
airport more efficient. This legislation represents cooperation and 
collaboration between Republicans and Democrats, both in Illinois and 
in Washington. Tonight, half of the Congress will say ``yes'' to O'Hare 
and provide a strong impetus for the Senate to make this project a 
reality before Congress adjourns.
  I urge adoption of this legislation, and I compliment the gentleman 
from Illinois (Mr. Lipinski), my partner on this effort.
  Mr. Speaker, I reserve the balance of my time.
  Mr. JACKSON of Illinois. Mr. Speaker, I yield myself such time as I 
may consume.
  Mr. Speaker, I rise in opposition to H.R. 3479. Votes on the 
suspension calendar are supposed to be, by definition, 
noncontroversial. But to argue that H.R. 3479 is noncontroversial is 
like arguing that the elimination of estate taxes, gun control 
legislation, a patients' bill of rights, and prescription

[[Page 12837]]

drug benefits for seniors should all be put on the suspension calendar. 
H.R. 3479 is the most controversial of bills to come before the House 
this year. It has been extremely controversial in Chicago, in the 
northwest suburbs, in Illinois generally, in the Illinois congressional 
delegation where our two U.S. Senators are divided over it, in all 
House and Senate committees, in the full Senate, and if a full debate 
were held here on the House floor today, the Nation would actually see 
just how controversial this bill is.
  This bill has already been delayed in the Senate with one virtual 
filibuster. It will be subjected to every parliamentary and tactical 
maneuver possible to try to stop it when it comes before the Senate 
again. Hardly noncontroversial. To tear down and rebuild O'Hare will 
cost taxpayers three times as much money as it will cost to build a 
third south suburban airport, 15 to $20 billion, not the $6.6 billion 
that has been floated about during this debate, versus the 5 to $7 
billion to build a third airport. This bill, Mr. Speaker, is highly 
controversial. Tearing down and rebuilding O'Hare is estimated to take 
15 to 20 years, assuming it proceeds on schedule, without lawsuits, 
which is not likely, while building a new south suburban airport would 
only take 5 years, it would expand thereafter as need arises and would 
be a more permanent solution to the capacity crisis. When the new 
O'Hare is completed, we will be in the same position we are today with 
regard to the air capacity crisis. How can that possibly not be seen as 
controversial?
  This bill will increase environmental pollution. O'Hare already is 
the number one polluter in Illinois. Hardly noncontroversial. The 
Chicago Tribune won a Pulitzer Prize for documenting the sleaze 
surrounding Chicago O'Hare and its vendor and service contracts, hardly 
an uncontroversial bill for Congress to be considering without full 
debate.
  But, Mr. Speaker, most importantly, H.R. 3479 falls woefully short of 
providing an adequate, equitable solution to a profound problem. 
Although I oppose this bill for many reasons, I rise today to discuss 
an important element of this bill, its constitutionality. By the 
attempt to rebuild and expand O'Hare Airport, Congress is 
inappropriately violating the 10th amendment. Under the framework of 
federalism established by the Federal Constitution, Congress is without 
power to dictate to the States how the States delegate power, or limit 
the delegation of that power, to their political subdivisions. Unless 
and until Congress decides that the Federal Government should build 
airports, airports will continue to be built by States or their 
delegated agents, State political subdivisions or other agents of State 
power, as an exercise of State law and State power. Further compliance 
by the political subdivision of the oversight conditions imposed by the 
State legislature as a condition of delegating the State law authority 
to build airports is an essential element of that delegation of State 
power. If Congress strips away a key element of that State law 
delegation, it is highly unlikely that the political subdivision, the 
city of Chicago, would continue to have the power to build airports 
under State law. The political subdivision's attempts to build runways 
would likely be ultra vires, without authority, under State law.
  Under the 10th amendment and the framework of federalism built into 
the Constitution, Congress cannot command the States to affirmatively 
undertake an activity. Nor can Congress intrude upon or dictate to the 
States the prerogatives of the States as to how to allocate and 
exercise their State power, either directly or by the State or by 
delegation of State authority to its political subdivisions.
  It is increasingly clear, Mr. Speaker, that under New York v. United 
States, Printz v. United States, Gregory v. Ashcroft, and Reno v. 
Condon that this bill is without the authority of the Constitution of 
the United States, and our position is that we stand firmly on the side 
of our Founding Fathers when Congress seeks to impose upon the State of 
Illinois, ignoring the Illinois Aeronautics Act, this unconstitutional 
piece of legislation.
  Mr. Speaker, I rise in opposition to H.R. 3479.
  Votes on the suspension calendar are supposed to be, by definition, 
non-controversial. But to argue that H.R. 3479 is non-controversial is 
like arguing that the elimination of estate taxes, gun control 
legislation, a patients bill of rights, and prescription drug benefits 
for seniors should all be on the suspension calendar. H.R. 3479 is one 
of the most controversial bills to come before the House this year. It 
has been extremely controversial in Chicago, in the northwest suburbs, 
in Illinois generally, in the Illinois congressional delegation(our two 
U.S. Senators are divided over it), in all House and Senate Committees, 
in the full Senate, and, if a full debate were held on the House floor 
today, the nation would see just how controversial this bill is.
  This bill has already been delayed in the Senate with one virtual 
filibuster--and it will be subjected to every parliamentary and 
tactical maneuver possible to try to stop it when it comes before the 
senate again. Hardly non-controversial!
  To tear down and rebuild O'Hare will cost taxpayers three times as 
much money as it will cost to build a third South Suburban airport--
$15-20 billion (not the $6.6 billion generally used) versus $5-7 
billion. This bill is hardly non-controversial for taxpayers!
  Tearing down and rebuilding O'Hare is estimated to take 15-20 years, 
assuming ti proceeds on schedule, without lawsuits--not likely--while 
building a new South Suburban Airport would take five years, it would 
expand thereafter as need arises, and would be a more permanent 
solution to the capacity crisis. When the new O'Hare is completed, we 
will be in the same position we are today with regard to the air 
capacity crisis. How is that not controversial?
  This bill will double the noise pollution in the suburban communities 
surrounding O'Hare. It is hardly non-controversial in the polluted 
northwest suburbs of Chicago.
  Doubling the traffic in the air space around O'Hare from 900,000 to 
1.6 million operations will make flying into O'Hare less safe for the 
public--hardly noncontroversial for the flying public.
  This bill will increase environmental pollution--O'Hare is already 
the number one polluter in Illinois--hardly non-controversial for those 
having to live in the increased pollution.
  The Chicago Tribune won a Pulitzer Prize for documenting ``sleaze'' 
surrounding the City of Chicago and past O'Hare construction, vender, 
and service contracts. By passing this bill--and removing the Illinois 
Aeronautics Law and by-passing the Illinois General Assembly--we are 
virtually sanctioning more ``sleaze'' to be found around O'Hare 
construction, vender, and service contracts. Since when has such 
potential ``sleaze'' become non-controversial for Congress.
  I don't consider the Federal Government running over any future 
Governor of Illinois, the Illinois General Assembly, the Illinois 
Aeronautics Law, and the 10th Amendment of the U.S. Constitution--to 
build an airport--non-controversial.
  Finally, we're already finding out how controversial this bill is as 
Judge Hollis Webster on July 9, 2002, stopped the City of Chicago from 
running rough-shod over their northwest suburban neighbors by illegally 
trying to buy up and tear down their homes and businesses to make room 
for O'Hare expansion. This is just one of many controversial lawsuits 
that have been and will be filed in the future if this bill passes and 
becomes law.
  How is tearing down and rebuilding O'Hare--which will be three times 
as expensive, take three times longer, be less protective of the 
environment, make the skys less safe, and be a less permanent solution 
than building a third airport--non-controversial? I say, solve the 
current air capacity crisis by building Peotone first, faster, cheaper, 
and safer, then evaluate what needs to be done with O'Hare.
  H.R. 3479 fall woefully short of providing an adequate, equitable 
solution.
  Please know that I do not oppose fixing the current air capacity 
crisis surrounding O'Hare. But I have many, many grave concerns about 
this specific expansion plan. Concerns about cost. About safety. About 
environmental impact. About federal precedence--and I associate myself 
completely with the remarks of my good friend, Mr. Hyde.
  Although I oppose this bill for many reasons, I rise today to discuss 
an important element of this bill--constitutionality.
  The attempt to rebuild and expand O'Hare Airport--Congress is 
inappropriately violating the Tenth Amendment.
  In other contexts--specifically with regard to certain human rights--
I believe that the Tenth Amendment serves to place limitations on the 
federal government with which I disagree. Indeed, in the area of human 
right, I believe

[[Page 12838]]

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, 981 (1997) (emphasis added)

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

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

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

       Municipal corporations are political subdivisions of the 
     State, created as convenient agencies for exercising such of 
     the governmental powers of the State as may be entrusted to 
     them. For the purpose of executing these powers properly and 
     efficiently they usually are given the power to acquire, 
     hold, and manage personal and real property. The number, 
     nature and duration of the powers conferred upon these 
     corporations and the territory over which they shall be 
     exercised rests in the absolute discretion of the State. . . 
     .  The State, therefore, at its pleasure may modify or 
     withdraw all such power, may take without compensation such 
     property, hold it itself, or vest it in other agencies, 
     expand or contract the territorial area, unite the whole or a 
     part of it with another municipality, repeal the charter and 
     destroy the corporation. All this may be done, conditionally 
     or unconditionally, with or without the consent of the 
     citizens, or even against their protest. In all these 
     respects the State is supreme, and its legislative body, 
     conforming its action to the state constitution, may do as it 
     will, unrestrained by any provision of the Constitution of 
     the United States.

  Commissioners of Highways, 653 F.2d at 297 Chicago has acknowledged 
that Illinois has delegated its power to build and operate airports to 
its political subdivisions by express statutory delegation. 65 ILCS 5/
11-102-1, 11-102-2 and 11-102-5. These state law delegations of the 
power to build airports and runways are subject to the Illinois 
Aeronautics Act requirements--including the requirement that the State 
approve any alterations of the airport--by their express terms. Any 
attempt by Congress to remove a condition or limitation imposed by the 
Illinois Legislature on the terms of that state law delegation of 
authority would likely destroy the delegation of state authority to 
build airports by the Illinois Legislation to Chicago--leaving Chicago 
without delegated state legislative authority to build runways and 
terminals at O'Hare or midway. The requirement that Chicago receive a 
state permit is an express condition of the grant of state authority 
and an attempt by Congress to remove that condition or limitation would 
mean that there was no continuing valid state delegation of authority 
to Chicago to build airports. Chicago's attempts to build new runways 
would be ultra vires under state law as being without the required 
state legislative authority.
  Clearly this bill sets dangerous precedence by stating that 
Congress--not the FAA, not Departments of Transportation, not aviation 
experts--but Congress shall plan and 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.

[[Page 12839]]

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

[[Page 12840]]

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


                                analysis

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

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

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

[[Page 12841]]

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

[[Page 12842]]

     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 
     had to decide how to dispose of radioactive waste. Rather 
     than handle the matter directly, it chose a low-cost 
     solution: it simply ordered the states to take care of the 
     problem. The law required the states to take title to 
     radioactive waste that private parties had generated, and be 
     responsible for its disposal, at not cost to the federal 
     government. In 1992, the Supreme Court invalidated the law, 
     calling it an unprecedented effort by the federal government 
     to co-opt legislative and executive branch officials of state 
     government.
       A few years later, Congress mandated background checks in 
     connection with gun purchases. It didn't want to spend 
     federal money for bureaucrats to enforce the new law, so it 
     told city and state law enforcement personnel to carry out 
     the background checks. Printz v. United States invalidated 
     that portion of the federal law. The Supreme Court explained 
     that city and state officials do not work for the federal 
     government; they work for the state. Cities are creatures of 
     state law, and they have only the powers that the state 
     chooses to give them.
       Federalism, the Court tells us, exists to protect the 
     people by dividing power between the states and the federal 
     government. That protection is undermined if Congress can 
     bypass the federal bureaucracy by directing state or city 
     officials to do its bidding. The Court added that allowing 
     Congress to treat state officials as its worker bees is bad 
     policy because it muddies responsibility, weakens political 
     accountability, and increases federal power.
       The Constitution gives Congress plenty of ways to deal with 
     O'Hare, but they all cost money: Congress can use its 
     spending power to expand the airport; it can give the state 
     money on the condition that it expand the airport; it can 
     order federal officials (the Army Corps of Engineers) to 
     build the O'Hare expansion. But Congress may not simply order 
     or authorize state or city officials to violate state law and 
     act like federal employees. The proposed federal law dealing 
     with the expansion of O'Hare Airport subjects Illinois to 
     special burdens that are not applicable to other states or to 
     private parties, and it authorizes Chicago, a city created by 
     the state, to do that which Illinois law prohibits.
       Justice Sandra Day O'Connor, speaking for the Court in 
     1992, put it bluntly: ``Where a federal interest is 
     sufficiently strong to cause Congress to legislate, it must 
     do so directly; it may not conscript state [or city] 
     governments as its agents.''
                                  ____


                          A Controller's View

       Ladies and gentlemen; I have proudly served the FAA for the 
     past 14 years as an Air Traffic Controller. I have been 
     employed at several air traffic control facilities throughout 
     the Chicagoland area, and feel that I have a unique 
     perspective on enhancing future airport development.
       To date, most of you have heard numerous insights on a 
     proposed third major airport for Chicago. Let me offer 
     another perspective from a ``controller's viewport''. Within 
     a small twenty-mile radius of the Chicagoland area, lie four 
     of the busiest airports in the country. Approximately one and 
     one half million airplanes take off and land at Palwaukee, 
     Dupage, Midway, and O'Hare Airports yearly! This puts a 
     tremendous strain on the Air Traffic Controllers who struggle 
     to keep this area safe and without significant delay. With 
     air travel continuously increasing, delays and safety will 
     become a nearly impossible challenge.
       Plans for expansion at the two major Chicago airports will 
     not be enough to meet demands. O'Hare airport has reached its 
     maximum capacity creating consequential delays. There are not 
     enough available gates, runways, and taxiways to serve all 
     the aircraft. Although there are plans to add additional 
     gates and another runway, this will not address the taxiway 
     problem. Due to the layout of O'Hare airport, in my opinion 
     there is no effective way to construct additional taxiways 
     that will have a positive impact on airport operations. Thus 
     making any other method to increase capacity ineffective.
       The problems that face O'Hare are some of the same problems 
     facing Midway Airport. Midway boasts as being aviation's 
     busiest square mile. Nowhere else are there more commercial 
     airplanes landing and departing in such a condensed area. 
     Unfortunately, Midway Airport is very condensed. Due to 
     runway lengths, it can only handle the smallest commercial 
     aircraft. The airport is severely landlocked with major 
     streets, houses and businesses immediately surrounding the 
     field. Even with the current terminal expansion project in 
     effect, an insufficient number of taxiways and the size of 
     the runways, in my opinion limit any significant increase in 
     traffic.
       The need for a third major airport is loud and clear. With 
     the projections of air traffic on the rise, additional 
     airports must become available. In my opinion, Peotone is an 
     excellent location for a major commercial airport. Peotone is 
     located just outside the

[[Page 12843]]

     main flow of air traffic in and out of Chicago. Any 
     additional airplanes created by the third airport would not 
     adversely effect air traffic facilities located east, south, 
     and west of Peotone. A third airport located in Peotone would 
     not be significantly effected by Chicago's air traffic, which 
     is rapidly reaching a saturation point, but instead would aid 
     in alleviating the congestion heading into Chicago.
       Another point of interest, which may have been overlooked, 
     is corporate aircraft. The use of corporate aircraft is one 
     of the fastest growing fields in aviation. There are very 
     few, if any airports that can accommodate corporate aircraft 
     in the south Chicagoland area. With the pending closure of 
     Meigs Field in Chicago, the Petone airport would fill the 
     need for another corporate airport crucial to south 
     Chicagoland businesses. Furthermore, suggestions that a third 
     major airport being located in the immediate Chicagoland 
     area, namely Gary, Indiana, would not alleviate the 
     saturation problem Chicago is already facing.
       In closure, I would like to thank all those involved with 
     the Petone Airport project. I am greatly anticipating the 
     future events surrounding this project.
                                  ____



                                             John W. Teerling,

                                   Lockport, IL, January 18, 1999.
     Re: A Third Chicago Airport.
     Governor George Ryan,
     State Capitol, Springfield, IL.
       Dear Governor Ryan: My name is John Teerling and I recently 
     retired, after 31.5 years with American Airlines as a 
     Captain, flying international routes in Boeing 767 and 757's. 
     I was based at Chicago's O'Hare my entire career. I have seen 
     the volume of traffic at O'Hare pick up and exceed anyone's 
     expectations, so much so, that on occasion mid-airs were only 
     seconds apart. O'Hare is at maximum capacity, if not over 
     capacity. It is my opinion that it is only a matter of time 
     until two airliners collide making disastrous headlines.
       Cities like Atlanta, Dallas and especially Miami continue 
     to increase their traffic flow, some months exceeding 
     Chicago, and at some point could supersede Chicago 
     permanently. If Chicago and Illinois are to remain as the 
     major Hub for airline traffic, a third major airport has to 
     be built, and built now. Midway, with its location and 
     shorter runways will never fill this void. A large 
     international airport located in the Petone area, complete 
     with good ground infrastructure (rail and highway) to serve 
     Chicago, Kankakee, Joliet, Indiana and the Southwest suburbs, 
     would be win, win situation for all. The jobs created for 
     housing, offices, hotels, shopping, manufacturing and light 
     industry could produce three to four hundred thousand jobs. 
     Good paying jobs.
       Another item to consider, which I feel is extremely 
     important, is whether. I have frequently observed that there 
     are two distinct weather patterns between O'Hare and 
     Kankakee. Very often when one is receiving snow, fog or rain 
     the other is not. These conditions affect the visibility and 
     ceiling conditions determining whether the airports operate 
     normally or not. Because of the difference in weather 
     patterns when one airport, say O'Hare, is experiencing a 
     hampered operation, an airport in Peotone, in all 
     probability, could be having more normal operations. 
     Airliners could then divert to the ``other'' Chicago Airport, 
     saving time and money as well as causing less inconvenience 
     to the public. (It's better to be in Peotone than in 
     Detroit).
       It is well known that American and United, who literally 
     control O'Hare with their massive presence, are against a 
     third airport, Why? It is called market share competition and 
     greed. A new airport in the Peotone area would allow other 
     airlines to service Chicago and be competition. American and 
     United are of course dead set against that. What they are not 
     considering is that their presence at a third airport would 
     afford them an even greater share of the Chicago regional pie 
     as well as put them in a great position for future expansion.
       You also have Mayor Daley against a third airport because 
     he feels a loss of control and possible revenue for the city. 
     This third airport, if built, and it should be, should be 
     classified as the Northern Illinois Regional Airport, 
     controlled by a Board with representatives from Chicago and 
     the surrounding areas. That way all would share in the 
     prestige of a new major international airport along with its 
     revenues and expanding revenue base.
       The demand in airline traffic could easily expand by 30% 
     during the next decade. Where does this leaves Illinois and 
     Chicago? It leaves us with no growth in the industry if we 
     have no place to land more airplanes. If Indiana were ever to 
     get smart and construct a major airport to the East of 
     Peotone, imagine the damaging economic impact it would have 
     on Northern Illinois!
           Sincerely,
     John W. Teerling.
                                  ____


 The Future of the Chicago Region: Smart Growth, Infill Redevelopment 
                          and Regional Balance

       The Midwest and, in particular, the Chicago Metropolitan 
     Area, has had a remarkable turnaround in economic fortune 
     over the past decade. It has shed its ``rust-belt'' image and 
     has produced remarkable economic growth.
       Between 1990 and 1998, the six-county Chicago area grew by 
     505,500 persons, a 7 percent increase. While this percent 
     increase is moderate, the numerical increase is equivalent to 
     a city larger than Denver.
       Between 1990 and 1997, the six-county area grew by 275,000 
     jobs, a 9 percent increase. Between 1970 and 1996, the region 
     (Kenosha to Michigan City) grew by 1.310 million jobs, the 
     fifth largest increase in the nation.
       Between 1996 and 2020, the Chicago region is projected to 
     grow by 785,000 persons. This is a city the size of San 
     Francisco.
       Between 1996 and 2020, the Chicago region is projected to 
     have the largest growth of any metro area in the U.S., adding 
     1.118 million jobs.
       In spite of these significant regional turnarounds, the 
     City of Chicago continued to lose ground. Between 1991 and 
     1997, the City of Chicago lost over 27,000 jobs; 11,0000 were 
     from the South Loop. Every one of the City's eight major 
     community areas experienced losses, with the exception of 
     North Michigan Avenue and the Northwest area around O'Hare 
     International Airport. The Far South, Southwest and South 
     communities experienced the greatest losses.
       This development trend extended to the suburban area. While 
     the six-county Chicago Area grew by 275,000, the north and 
     northwest suburbs were the major beneficiaries. DuPage, Lake 
     and Northwest Suburban Cook (around O'Hare) Counties 
     contributed 194,000 jobs, or 71 percent of the net growth. 
     With 500,000 jobs in Chicago's Central Business District 
     versus 450,000 in North Suburban Cook County and 150,000 in 
     Northeast Du Page County, the economic center of the region 
     has shifted from downtown to O'Hare.
       O'Hare International Airport is, undoubtedly, the great 
     economic engine it is portrayed. But, it has run out of 
     space, both in the air and on the ground. Its enormous 
     attraction, to business and industry, has brought thousands 
     of enterprises, hundreds of thousands of jobs, millions of 
     visitors and billions of dollars, annually, to the Chicago 
     region. On this, we all agree. But, the area surrounding it 
     is choking on the development. Other areas, particularly the 
     South Side, are in great need of both jobs and better airport 
     access. In fact, the two issues are closely related.
       The massive development attracted by O'Hare Airport makes 
     airport expansion there costly, time-consuming, difficult and 
     intrusive. Traffic often is brought to a near halt on the 
     expressways leading to O'Hare; future traffic problems would 
     be compounded many times over. O'Hare's neighbors--well-aware 
     of its many economic contributions--also are wary of 
     expansion, weary of noise and traffic, and fearful of 
     possible future compromises on safety. On the opposite side 
     of the region--and the other side of the ledger--are the 
     communities of the Chicago South Side and the South Suburbs. 
     By all accounts, these areas find themselves overlooked and 
     under-served--primarily due to their distance from the 
     region's airports. This economic disparity is clearly evident 
     from the following maps, which show job concentrations in 
     1960 and 1990. This period marked major declines in 
     manufacturing jobs in the region's South Side; and a rise in 
     both manufacturing and service jobs in the North/Northwest, 
     around O'Hare. Airport access was the difference.
       The solution to the region's needs is the Third Chicago 
     Airport. Development of the Third Chicago Airport is a true 
     urbanist's dream: obtaining multiple benefits from one 
     investment. Why, then, is it being ignored? When you have two 
     powerful and thoughtful representatives of the people--
     Congressman Henry Hyde saying ``we've had enough,'' and 
     Congressman Jesse Jackson, Jr. saying ``let us have some--
     perhaps we should listen to them. Other representatives--
     Congressmen Jerry Weller, Bobby Rush, and Tom Ewing, Senator 
     Peter Fitzgerald, Governor George Ryan, Senate President Pate 
     Phillip--plus scores of local mayors, hundreds of local 
     businesses and hundreds of thousands of residents, have 
     joined in the effort to bring the airport to the South 
     Suburbs. Perhaps, with the airport in place, we can begin to 
     truly balance growth, encourage infill development and share 
     the wealth of the region.


             the planning process: twelve years of findings

       The state agency responsible for planning the region's 
     transportation infrastructure, the Illinois Department of 
     Transportation (IDOT), has been planning for the region's 
     aviation needs for the past twelve years. IDOT, and its 
     aviation consultants, are convinced, without a doubt, that 
     Chicago's aviation demands will more than double by 2020. The 
     Federal Aviation Administration (FAA), the Airports Council 
     International (ACI) and other industry groups have forecasted 
     national growth of similar magnitude. For a brief time, the 
     City of Chicago agreed, as well. The Chicagoland Chamber 
     study predicts a five-fold increase in international traffic. 
     IDOT's studies support the contention that Chicago has an 
     excellent opportunity to be the dominant North American hub 
     for international flights, as well as its premier domestic 
     hub, into the next century. That point has been stated and 
     documented on many occasions by IDOT. The State's

[[Page 12844]]

     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:
       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.
                                  ____


    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.

[[Page 12845]]

       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 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 
     forecast), the FAA has generated five 12-year forecasts, five 
     long-range national forecasts though 2020, and five terminal 
     area forecasts.
       All the FAA national forecasts are higher than the study's 
     base forecast.
       Although it continues to contest IDOT's forecasts, the City 
     and Chicago and its consultants are using forecasts that are 
     nearly identical.
       The City and State are using IDOT socio-economic and 
     aviation forecasts for all short- and long-term regional 
     transportation planning.
       Other aviation plans (Gary Airport Master Plan; Booz-Allen 
     forecasts for O'Hare International) are consistent with IDOT 
     forecasts.
     Capacity Constraints Jeopardize Economic and Aviation Growth
       The ability of the region's airports to accommodate demand 
     is a most-serious concern. The Chicago region has reached 
     aviation capacity. These aviation capacity constraints have 
     dampened regional growth:
       Since 1995, O'Hare's growth in commercial operations has 
     stopped.
       Domestic enplanements at O'Hare have declined this year.
       Small cities have been dropped from service.
       Booz-Allen says the international market is not being well 
     served.
       Fares at O'Hare have risen above the average for large 
     airports.
       O'Hare's delays have been much greater this year than last; 
     O'Hare's delays are among the nation's highest and cascade 
     throughout the nation's airports.
       The FAA has long forecasted such capacity problems and 
     resultant delays. In 1992 it forecasted a doubling of 
     airports with delay problems by 2001.
       The forecasts have arrived a bit ahead of schedule. Without 
     additional capacity, the economic well-being of both Chicago 
     and the nation are jeopardized.
                                  ____


                      NIPC Findings--November 1996


                   talking about the region's future

       We recently asked a cross-section of the region's leaders:
       Should water quality protection measures for our rivers, 
     lakes, and streams be implemented even if this means placing 
     development limits on presently undeveloped high-quality 
     watersheds?
       Should the region pursue infill and redevelopment 
     strategies that lead to employment and income growth in older 
     communities that have experienced diminished tax base and 
     disinvestment?
       Should priority in transportation funding be given to 
     maintenance of the existing system?
       Should measures to encourage reclamation of contaminated 
     properties, including tax credits and limits on liability, be 
     enacted?
       Yes, said strong majorities of participants in two public 
     workshops conducted by NIPC in June and September of this 
     year. The workshops were held as part of an effort to engage 
     the region in a discussion of growth choices facing us. 
     Participants representing local governments, state and 
     federal agencies, and civic and community organizations were 
     asked to respond to possible future development patterns, 
     their probable consequences, and the tools it would take to 
     bring them about. The broad choice which framed the 
     discussions was this: should anticipated future growth 
     continue along the path of past trends or should efforts 
     should be made to moderate the physical decentralization of 
     the region?
       NIPC is not alone in the region in raising these issues. In 
     fact, it is hard to remember a time when the future 
     development of the region has been discussed more widely or 
     fervently. Numerous civic and community organizations have 
     been developing analyses and recommendations on 
     transportation and development and encouraging discussion of 
     regional issues by their members and constituents.
       The Commission's immediate purpose in conducting the 
     workshops was to seek public guidance in the development of 
     new demographic forecasts for the region. These forecasts 
     will be used in the preparation of the Regional 
     Transportation Plan for 2020. Draft forecasts will be 
     completed by early 1997. At the same time, the Chicago Area 
     Transportation Study (CATS) will complete a draft 
     transportation plan. After a period of public review, the 
     transportation plan will be tested for conformity with the 
     requirements of the Clean Air Act. Following additional 
     opportunity for public comment, final forecasts will be 
     endorsed and the Regional Transportation Plan for 2020 will 
     be adopted. These actions are scheduled for June 1997.
       Beyond the immediate need to support the transportation 
     planning process, this regional discussion advances NIPC's 
     mission of striving for consensus on policies and plans for 
     action which will promote the sound and orderly development 
     of the northeastern Illinois area. The purpose of this 
     newsletter is to inform the region of what we have heard and 
     to encourage continuing deliberation on what kind of region 
     we want to be in the next century.
     What We Have Heard
       Several general conclusions emerged from the workshops. The 
     first is that there is widespread, though by no means 
     unanimous, belief that the past trend of dispersed, low-
     density residential and employment growth has had unintended 
     negative consequences which must be moderated to some degree 
     in the interests of environmental quality, prudent public 
     investment, and social equity. There is also substantial 
     support for some public policy measures which could help 
     achieve that moderated growth. These will be described in 
     more detail below. Some measures which could be highly 
     effective in moderating past trends are widely agreed to lack 
     political acceptability in this region. Finally, there is 
     broad support for measures which would improve the quality of 
     local planning and development within either a continued 
     trends or moderated trend approach.
     The Forecast: A Growing Region
       The preparation of forecasts of future population, 
     households, and employment is one

[[Page 12846]]

     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 from growing population. The forecasts 
     thus have implicit in them a generalized land use plan for 
     the region. It is critical that they be as realistic as 
     possible in reflecting the trends and constraints of the 
     market, the influences of public policy, and expectations of 
     local governments.
       We have previously described the process being used to 
     develop forecasts for the year 2020 (NIPC Reports, January 5, 
     1996). In March 1994, the Commission endorsed regional 
     forecast totals of 9 million people, 3.4 million households, 
     and 5.3 million jobs in 2020. These figures represent a 25 
     percent increase in population and a 37 percent increase in 
     employment from 1990 to 2020. By way of comparison, between 
     1970 and 1990 the region's population increased by only four 
     percent and employment by 21 percent. The amount of land 
     devoted to urban uses, however, increased by 34 percent 
     during that twenty-year period. In view of this finding about 
     land consumption, the forecasted future growth has the 
     potential to add seriously to pressures on the transportation 
     system, air and water quality, and agricultural land. The 
     Commission thus concluded that alternatives to past patterns 
     of growth had to be presented to the region for discussion.
     A Preferred Development Pattern in Northeastern Illinois
       On June 26, 1996, the Commission conducted the first of two 
     regional workshops on alternative growth scenarios and their 
     implications. The intent was to assess how much support there 
     might be for different development patterns and how much 
     acceptance of their probable costs. It was hoped that 
     participants would set aside issues of feasibility for the 
     time being and respond to the question of what is the most 
     desirable future for the region. The workshop was attended by 
     127 people representing a broad spectrum of organizations and 
     interests.
       Three general scenarios were presented. Each was designed 
     to illustrate the outcome of a unique combination of public 
     policies with respect to transportation and community 
     development. The broad patterns of new household and job 
     growth to which these scenarios would lead are shown in the 
     maps below. Participants were not asked to express a 
     preference among the scenarios themselves, but to evaluate 
     the relative importantance of the impacts which each would 
     have on communities and the natural environment. Questions to 
     the participants concerned the importance of land development 
     patterns which would (1) help preserve farmland, (2) 
     encourage the use of public transit, (3) protect high-quality 
     watersheds from the impacts of urbanization, and (4) promote 
     affordable housing close to centers of job growth.
       Continued Trends. This is the ``baseline'' scenario which 
     assumes the least change, in terms of public policy, from 
     recent conditions. Only limited highway and rail transit 
     capacity would be built beyond what is currently committed 
     for funding. Future demand for aviation service would be met 
     at O'Hare and Midway. The broad pattern of low-density 
     dispersal of jobs and households would continue. Households 
     and jobs in Chicago and some inner suburbs would continue to 
     decline while they would increase in the rest of the region. 
     The largest number of new jobs would be located in suburban 
     Cook County, and DuPage County would gain jobs but as a 
     slower rate. The four outer counties would show the greatest 
     percentage gains in employment. Household growth would be 
     strongest in the middle ring of suburbs. The loss of farmland 
     would be substantial, as would the negative impact of urban 
     densities on lakes and streams. Automobile use would continue 
     to increase and transit use to decline. The separation of 
     affordable housing from low-income jobs would continue to 
     increase.
       South Suburban Airport. The central assumption of this 
     scenario is that future need for additional aviation capacity 
     would be provided at the proposed south suburban airport. 
     Otherwise, the scenario makes essentially the same land use 
     and transportation policy assumption as the trends 
     alternative. Employment and population in Chicago would 
     increase, although the city's regional share would decline 
     slightly. Job growth would be lower than under existing 
     trends in the northern and western parts of the region and 
     substantially higher in south Cook and Will counties. 
     Household growth would be similar to that expected under a 
     continuation of trends. Conversion of agricultural land would 
     be extensive, particularly in Will County, as would 
     development pressure on lakes and streams. The development of 
     the airport could have a positive effect on jobs-housing 
     balance and on redevelopment by bringing employment to a 
     portion of the region which is now relatively job-poor.
       Redevelopment and Infill. This scenario represents a 
     deliberate attempt to moderate the trend of dispersed 
     development and to encourage reinvestment in mature 
     communities. Like the trends scenario, this alternative 
     assumes limited investment in new surface transportation and 
     satisfaction of future aviation requirements at the existing 
     regional airports. In addition, the scenario assumes (1) 
     implementation of very strong farmland protection policies in 
     the agricultural protection zones in Kane, McHenry and Will 
     counties, (2) intensive population and employment growth 
     within walking distance of selected transit stops in Chicago 
     and the inner suburbs, and (3) high employment growth through 
     redevelopment in certain built-up areas in Chicago, the inner 
     suburbs, Waukegan, and Joliet. Under this scenario, Chicago's 
     loss of population and employment would be reversed. At the 
     same time, the other sectors of the region would all gain 
     both people and jobs, though their rates of growth would be 
     lower than under a continuation of trends. Conversion of 
     farmland for development and urban stress on water resources 
     would be at lower levels than the other two scenarios, but 
     still significant. Similarly, automobile use would increase 
     and transit ridership decrease, but at lower rates. Because 
     both jobs and population would increase in the communities 
     with the greatest low-income population, jobs-housing balance 
     would change only slightly.
       The redevelopment scenario was designed to simulate the 
     effect of efforts to moderate the worst unintended 
     consequences of recent trends. Two important conclusions 
     emerge from an examination of the scenario results:
       Given NIPC's overall forecasts, economic growth in 
     northeastern Illinois need not be an either-or situation. 
     Even with deliberate efforts to encourage reinvestment in the 
     mature core communities, the balance of the region can 
     sustain a relatively high level of growth.
       Under conditions of high overall growth, managing negative 
     environmental consequences will be very difficult even if the 
     trend of decentralized, low-density development is moderated.
       Following the presentation of the scenarios, a panel of 
     five experts on aspects of the region's development commented 
     on the alternatives and on issues related to their 
     implementation. These are some of the highlights of their 
     comments:
       Barry Hokanson, Director of Planning, Lake County: Lake 
     County is expected to experience high growth under any one of 
     the scenarios. While the county has programs to meet the 
     demands on resources and services generated by growth, the 
     multiplicity of local governments makes the translation of 
     regional projections into coordinated local planning 
     difficult. There are strong voices in Lake County advocating 
     constraint on new transportation capacity as a means of 
     limiting growth and encouraging mature-area reinvestment.
       David Schulz, Director, Infrastructure Technology 
     Institute, Northwestern University: The outward movement of 
     households is driven by a variety of forces having to do with 
     the quality of schools, perceptions of safety, tax levels, 
     and job availability. Transportation systems do not induce 
     people to move but influence where they move. Constraining 
     the transportation system will simply force people to move 
     farther out past the perceived zone of congestion and will 
     thus worsen the problem of dispersal rather than curing it.
       Rusty Erickson, Director of Development, City of Aurora: 
     Aurora has benefited from the decentralizing trend in the 
     region. Continued growth is necessary to provide quality 
     schools and other services to residents. It is important that 
     new suburban growth be concentrated in areas with full public 
     services. Low-density development in rural areas will destroy 
     the open countryside which is a strong quality-of-life value.
       Frank Martin, President, Shaw Homes Inc: There is a market 
     for residential development which integrates the natural and 
     built environments and which provides the resource efficiency 
     and quality of life of a dense community, including access to 
     public transportation, while preserving high-quality natural 
     surroundings. However, developers will find this kind of 
     balanced development hard to do successfully if local 
     government does not address inefficiencies in public services 
     and excessive regulations which work against affordability by 
     raising land values and construction costs.
       Benjamin Tuggle, Field Office Supervisor, U.S. Fish and 
     Wildlife Service: Making maximum use of existing 
     intrastructure and established urban areas is an important 
     way of preserving high-quality air, surface water, and 
     wetlands in .  .  .
                                  ____


  If You Build It, We Won't Come--the Collective Refusal of the Major 
          Airlines To Compete in the Chicago Air Travel Market


an analysis of the per se violations of federal antitrust laws by major 
 airlines in their refusal to compete with each other in fortress hub 
     markets--with metropolitan chicago as a case example--may 2000

                     The Suburban O'Hare Commission

       The Suburban O'Hare Commission (SOC) is an inter-
     governmental agency representing

[[Page 12847]]

     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'' monopoly tithe American 
     consumer: billions of dollars per year in excess fares--
     hundreds of millions per year in metropolitan Chicago alone.
       3. The Big Seven's De Facto Geographic Allocation of Major 
     Air Travel Markets in the Nation through the Development of 
     ``Fortress Hubs'' Constitutes a Per Se Violation of Federal 
     Antitrust laws. Little discussion or analysis has been 
     undertaken by Congress or the Administration as to whether 
     this concerted refusal by the Big Seven to compete in their 
     fellow major airlines' Fortress Hub markets--which costs 
     consumers billions annually--constitutes a violation of 
     federal antitrust laws. Based on clear and repeated Supreme 
     Court precedent, it clearly does. The Big Seven's de facto 
     geographic allocation of major air travel markets in the 
     Fortress Hub through the development of ``Fortress Hubs'' 
     constitutes a per se violation of the antitrust laws. The 
     Supreme Court has uniformly condemned arrangements to carve 
     up horizontal markets as per se violations of section 1 of 
     the Sherman Act. See e.g., Palmer v. BRG Group of Georgia, 
     498 U.S. 46, 49 (1990); United States v Topco Associates, 
     Inc., 405 U.S. 596, 607-609 (1972).
       4. The Big Seven's Explicit Refusal to Compete In 
     Metropolitan Chicago: If You Build It, we Won't Come. In the 
     metropolitan Chicago air travel market, the illegal 
     collective refusal of the Big Seven to compete is manifested 
     by two actions: (1) the de facto abandonment by members of 
     the Big Seven (other than United and American) of any 
     significant role at O'Hare Airport and (2) the announcement 
     by the Big Seven and its allied in the Air Transport 
     Association that they would refuse to use a new South 
     Suburban Regional Airport. In the popular jargon of the 
     media, the Big Seven have said ``If you build it, we won't 
     come.''
       In reality, this collective refusal to use a new regional 
     airport is nothing more than a manifestation of the Big 
     Seven's horizontal market agreement not to compete in any 
     significant way with United and American in their dominant 
     Chicago market. This refusal by major airlines such as Delta, 
     Northwest, USAir, and Continental to use new metropolitan 
     Chicago airport capacity to compete in metropolitan Chicago 
     is but an individual example of the per se antitrust 
     violation of allocating geographic markets by the major 
     airlines. ``If you build it, we won't come'' is a blatant 
     violation of the federal antitrust laws.
       5. The City of Chicago's Participation in Opposing New 
     Capacity and in Assisting Big Seven in Their Refusal to Use 
     the New South Suburban Airport is Not Immune from Antitrust 
     Law Prosecution. The available evidence is clear that the 
     City of Chicago and its agents have been active participants 
     in helping the Big Seven Airlines in their refusal to compete 
     in the Chicago market and their refusal to use the proposed 
     South Suburban Airport. Absent express approval by the State 
     of the monopolistic practice, political subdivisions of the 
     State--like the City of Chicago--are not free to violate the 
     antitrust laws under the guise of state action.
       While Congress has made municipalities immune from damages 
     for violations of the antitrust laws, Chicago and its 
     officials are not immune from prosecution for their attempts 
     to assist the Big Seven in their refusal to compete in the 
     metro Chicago market and in United and American's attempts to 
     monopolize that market.
       6. It Appears That Federal Taxpayer Funds May Have Been 
     Used to Suppress Competition and Violate the Antitrust Laws 
     in the Chicago Market. United and American (the dominant 
     carriers at O'Hare)--along with other major airlines through 
     the Air Transport Association--have engaged in a concerted 
     effort to defeat construction of a new South Suburban 
     Airport, an airport that would provide significant capacity 
     opportunities for major new competition to enter the Chicago 
     market. United executives have stated their goal as ``Kill 
     Peotone''.
       United and American have been assisted in their ``Kill 
     Peotone'' (and thus kill new competitive capacity) campaign 
     by representatives of the City of Chicago--including 
     Chicago's consultants have been paid several million dollars 
     in fees to assist Chicago and United and American in 
     expanding O'Hare and in obstructing development of a new 
     South Suburban Airport.
       Much of the money paid to these consultants has come from 
     either: (1) federal Passenger Facility Charge (PFC) funds, 
     (2) federal Airport Improvement Program (AIP) funds, or (3) 
     federally subsidized municipal airport bonds (``GARBs'' 
     General Airport Revenue Bonds). Thus, we have the following 
     spectacle--not only are the airlines and Chicago engaged in a 
     monopolistic arrangement designed to prevent new competition 
     from entering the Chicago market (i.e., through the new 
     airport)--but much of the money to implement this illegal 
     arrangement is coming from federal taxpayer dollars. The GAO 
     and the Department of Justice should be asked to conduct an 
     independent audit of all PFC, AIP, and GARB expenditures at 
     O'Hare to determine if any federal funds were used as part of 
     a campaign to ``Kill Petone''--i.e., a campaign to oppose 
     construction of a new South Suburban Airport.
       7. Federal Officials Have Participated in and Supported the 
     Big Seven's Illegal Monopolistic Arrangement to Refuse to 
     Compete in the Chicago Market. Not only have federal funds 
     been used to support the major airlines illegal monopolistic 
     arrangement to refuse to compete in the Chicago market, but 
     it appears that federal officials within the Administration 
     have worked with the major airlines and Chicago to assist in 
     this antitrust arrangement to prevent the development of a 
     new airport in metropolitan Chicago. For the last several 
     years, federal administration officials--several of whom are 
     former Chicago officials who worked for the City of Chicago--
     have blocked development of the new South Suburban Airport 
     through a series of spurious legal claims that federal

[[Page 12848]]

     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 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

[[Page 12849]]

     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 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.,

[[Page 12850]]

     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 States and American at O'Hare 
     or to Northwest at Minneapolis and Detroit. Similar de facto, 
     quid pro quo non-compete accommodations by the major airlines 
     can be found at virtually every Fortress Hub where one or two 
     airlines have dominant control of the local market.
       As stated by one congressional witness:
       ``The major airlines * * * developed high market share hubs 
     in large sections of the country. Given the market power that 
     they have developed, the major airlines have raised prices 
     far above the competitive level in their market hubs (as 
     study after study has shown). Furthermore, the major airlines 
     defend their high price hub markets with predatory pricing. 
     These markets are descriptively called `fortress hub's'.
       ``There are two things the major airlines are doing to 
     monopolize large segments of the country. First, they work 
     hard to see that entry to their large markets remains closed 
     or difficult. Second, if a discounter enters a few of their 
     markets they use predatory pricing to drive the discounters 
     out of business.''
       The broad reach of this Fortress Hub system is illustrated 
     in a table prepared by the National Association of Attorneys 
     General.


                 Cities Where Fortress Hubs Are Located

     City and Dominant Airline
       Atlanta, Delta; Chicago O'Hare, United and American; 
     Cincinnati, Delta; Dallas, American; Detroit, Northwest; 
     Houston International, Continental; Minneapolis/St. Paul, 
     Northwest; Denver, United; Pittsburgh, US Air; St. Louis, 
     TWA.
       3. Monopoly Fare Premiums at Fortress Hubs.
       There is a large body of evidence and expert opinion--as 
     articulated by the General Accounting Office, USDOT, business 
     travel organizations, and the Illinois Department of 
     Transportation--that the dominance of these major markets by 
     one or two carriers results in a monopolistic ability to 
     raise fares beyond the air fares that would exist if there 
     was strong competition in these Fortress Hub markets. As 
     stated by the GAO as far back as 1990:
       ``Airports where one or two carriers handle most of the 
     enplaning traffic have higher fares than airports where the 
     traffic is less concentrated. Moreover, the data show that 
     fares tend to rise as concentration increases. While many 
     factors can influence fare changes, the evidence that we have 
     collected strongly suggests that fares and concentration at 
     an airport are related. Fares are higher at concentrated 
     airports than at relatively less concentrated ones, and the 
     evidence suggests that the gap is increasing.''
       Subsequent studies by GAO since 1990 have confirmed the 
     problem of higher fares at Fortress Hubs--higher than would 
     exist in a competitive environment. See e.g., Barriers to 
     Entry Continue in Some Markets (GAO/T-RCED-98-112; March 5, 
     1998); Airline Deregulation: Barriers to Entry Continue to 
     Limit Competition in Several Key Domestic Markets (GAO/RCED-
     97-4, Oct. 18, 1996); Domestic Aviation: Barriers to Entry 
     Continue to Limit Benefits of Airline Deregulation (GAO/RCED-
     97-120, May, 13, 1997); Airline Competition: Higher Fares and 
     Less Competition Continue at Concentrated Airports (GAO/RCED-
     93-141, July 15, 1993); Airline Competition: Effects of 
     Airline Market Concentration and Barriers to Entry on 
     Airfares (GAO/RCED-91-101, Apr. 26, 1991).
       While repeatedly emphasizing the problem of higher monopoly 
     fares caused by lack of competition, GAO continued to 
     emphasize the lifting of slot restrictions at three of the 
     nation's airports as a partial solution to the problem. GAO's 
     prime emphasis has been to obtain access to airport capacity 
     for the so-called ``low-cost'' new entrant airlines into the 
     Fortress Hub markets.
       But GAO has never analyzed the issue of the ``capacity'' of 
     these slot-restricted airports to service new competition--
     even if the slot restrictions were lifted. As discussed 
     below, the FAA has repeatedly emphasized that the practical 
     capacity of an airport is limited (see discussion, infra.) 
     and that as traffic growth approaches the physical limits of 
     the airport's capacity, aircraft delays rise geometrically--
     essentially leading to gridlock.
       As the analysis contained in the 1995 DOT report A Study of 
     the High Density Rule, and this study show, there simply is 
     not enough capacity at O'Hare--even with the slots lifted--to 
     all significant new competition to enter the Chicago market. 
     This is why the Big Seven's collective refusal (discussed 
     infra) to use and support the major new capacity that would 
     be provided by the new South Suburban Airport is a central 
     component in the preservation of the Fortress Hub problem in 
     metropolitan Chicago. Moreover, any arguable minor increment 
     of available capacity at O'Hare will rapidly be consumed by 
     United and American. There simply is not enough room at 
     O'Hare to allow a major new competitor to gain the ``critical 
     mass'' to compete with United and American.
       The Illinois Department of Transportation has repeatedly 
     emphasized its opinion that monopoly dominance at O'Hare 
     results in higher airfares paid by Chicago area travelers and 
     that major new regional airport capacity is essential to 
     breaking the monopoly stranglehold of Fortress O'Hare:
       ``There are numerous examples besides these to demonstrate 
     that without the competition of a new entrant, the fares at 
     Chicago are increasing or remain inordinately high.''
       ``We encourage and support your [USDOT's] focus on 
     anticompetitive practices that are injuring commerce, smaller 
     cities, and consumers in Illinois and throughout the region 
     serviced by O'Hare Airport as the hub of United Airlines and 
     American Airlines. We strongly urge, however, that the 
     enforcement policies should be part of a broader initiative 
     that will insure that there will be airport capacity 
     available in the Chicago area that will provide new airline 
     entrants the opportunity to compete with United and American. 
     Additional airport capacity is vital to restoring airline 
     competition in the Chicago, Illinois, and Midwestern 
     markets.''
       ``There is simply no room at O'Hare for new entrant 
     airlines to pose competitive challenges to the dominant 
     airlines.''
       4. Time Sensitive Business Traveler Biggest Loser in 
     Fortress Hub Monopoly System.
       The air travel consumer most seriously harmed by this 
     horizontal Fortress Hub market allocation is the business 
     traveler--particularly the small to medium size business 
     traveler who cannot negotiate bulk fare discounts and who 
     must make time sensitive business trips at unrestricted coach 
     fares.
       The Illinois Department of Transportation estimates this 
     monopoly based fare penalty at O'Hare alone exceeds several 
     hundred million dollars per year. Nationally, the loss to the 
     traveling public from these monopoly premiums at Fortress 
     Hubs is likely to exceed several billion dollars annually.
       As stated in major articles on the subject by USA Today and 
     the New York Times:
       What travelers suspect is true: Airfares are climbing fast, 
     and nowhere is the situation worse than at the hubs for the 
     nation's largest airlines.
       Business travelers have been especially hard hit at hubs
       And almost everywhere, hub fares, especially for business 
     fliers, are soaring. (USA Today February 23, 1998)
       Business travelers feel particularly abused because they 
     account for more than half of airline revenue. For in the 
     through-the-looking-glass world of airline pricing, the fares 
     paid by leisure travelers, who book as long as a month in 
     advance and stay over a weekend night, have in many cases 
     declined,

[[Page 12851]]

     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.
       The law is equally clear it is not necessary to demonstrate 
     a formal written agreement among the Big Seven to carve up 
     the geographic Fortress Hub market in order to find a 
     conspiracy in violation of the Sherman Act. The existence of 
     such an agreement or arrangement can be inferred from the 
     course of conduct of the members of the industry. Norfolk 
     Monument Company v. Woodlawn Memorial Gardens, 394 U.S. 700, 
     704 (1969); American Tobacco Company v. United States, 328 
     U.S. 781, 809-810 (1946); InterstateCircuit v. United States, 
     306 U.S. 208, 221, 226-227 (1939).
       7. The Metropolitan Chicago Market: An Egregious Example of 
     the Geographic Market Allocation and Refusal to Compete--``If 
     You Build It, We Won't Come.''
       A particularly egregious implementation of this horizontal 
     agreement not to compete in each other's Fortress Hub markets 
     can be found in the major airlines' announced refusal to use 
     a new major airport in the metropolitan Chicago. The most 
     visible manifestation of their refusal to compete in the 
     Chicago market an be found in letters written by sixteen 
     Chief Executive Officers (CEOs) of the major airlines to 
     Illinois Governor Jim Edgar and his successor George Ryan. In 
     those letters--drafted in coordination with representatives 
     of the City of Chicago and the Air Transport Association--the 
     major airlines tell the Illinois Governor that they will 
     refuse to use the proposed new metropolitan Chicago airport:
       ``We are writing to express our concerns about further 
     planning and development of the so-called Third Chicago 
     Airport. It is our understanding that the State of Illinois 
     will not proceed with the construction of a third airport 
     without the support of the airlines. This letter is intended 
     to inform you that the airlines oppose further planning and 
     construction of this facility . . .
       Chicago area news media have characterized the major 
     airlines' refusal to use a new airport as ``If you build it, 
     we won't come.'' In reality, this collective refusal to use a 
     new regional airport is nothing more than a manifestation of 
     the major airlines' horizontal market agreement not to 
     compete in any significant way with United and American in 
     their dominant Chicago market. This refusal by major airlines 
     such as Delta, Northwest, USAir, and Continental to use new 
     metropolitan Chicago airport capacity to compete in 
     metropolitan Chicago is but

[[Page 12852]]

     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) 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

[[Page 12853]]

     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 American 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 as 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 an 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 a push 400-500 new flights per day into O'Hare 
     is going to lead to: (1) massive increases in delays and (2) 
     widespread cancellations. FAA (USDOT) A Study of the High 
     Density Rule illustrates the massive delay increase that 
     adding just a few flights at O'Hare beyond the slot limits 
     will do to all passengers at O'Hare. This analysis shows that 
     adding 400-500 flights per day will lead to disastrous delays 
     for all passengers--more than doubling the delays for all 
     passengers, not just those who are on the new additional 
     flights.
       We anticipate that FAA and United and American will claim 
     that the delay and capacity results of DOT in 1995 have been 
     changed because of capacity improvements at O'Hare in 
     intervening years. But if so, a few questions need answering. 
     What are the capacity improvements since 1995? How much new 
     capacity has been provided? What will be the capacity/delay 
     numbers (comparable to DOT's 1995 analysis) with the new 
     capacity? Why were there no public hearings and environmental 
     disclosure on these capacity improvements?
       We suspect the answer is that there have not been any 
     capacity changes at O'Hare since 1995 and DOT's numbers 
     remain valid. Conversely, if there have been capacity 
     changes, FAA has failed to inform both affected elected 
     officials (e.g., Congressman Hyde and Senator Fitzgerald) and 
     they have failed to tell the public and give the public an 
     opportunity to be heard.
       There is another important point to emphasize about this 
     throughput/delay relationship shown on the FAA charts. Where 
     the airport is at the limits of acceptable delays--i.e., the 
     practical capacity limit--very small shifts in either traffic 
     demand or capacity can dramatically increase delays for all 
     passengers. Thus a small increase in traffic demand beyond 
     the practical capacity limit will generate huge increases in 
     delays for all passengers. Similarly, a slight decrease in 
     capacity--such as experienced this past year when regional 
     jet pilots were refusing Land-And-Hold-Short for safety 
     reasons--can dramatically increase delays with little or no 
     increase in throughput. The point here is that O'Hare is 
     already at the breaking point--brought there by the 
     resistance of Chicago and the Fortress Hub airlines at O'Hare 
     (United and American) to the building of a new regional 
     airport. O'Hare cannot handle 400-500 new flights per day and 
     United and American know it. Their own SIMMOD analysis tells 
     them that.
       Why then do United and American announce a literally 
     foolhardy plan to jam 400-500 flights into O'Hare--an 
     announcement made the same day that United's and American's 
     front organization (the Civic Committee) calls for a new 
     runway at O'Hare? By deliberately creating chaos at O'Hare, 
     United and American will then be able to say that delays are 
     at crisis levels and we must immediately build a new runway 
     at O'Hare.
       B. The ``Point-To-Point'' Shell Game: Building the South 
     Suburban Airport as a ``Point-To-Point'' Airport Will Not 
     Break the Hub-And-Spoke Monopoly of Fortress O'Hare.
       The heart of the monopoly overcharges to travelers in the 
     Chicago market is the absence of competition in the hub-and-
     spoke market in Chicago. None of the other Big Seven will 
     come into the Chicago market to establish a competitive hub-
     and-spoke operation.
       United and American propose using close to 10 billion 
     dollars (much of it in federal funds) to expand United and 
     American's hub-and-spoke empire at Fortress O'Hare. In an 
     attempt to expand their monopoly and prevent new competition 
     from entering the Chicago market, United and American (along 
     with the ``Civic Committee'' and the Chicagoland Chamber) 
     have sought to distract attention by suggesting a south 
     suburban airport in Chicago as a ``point-to-point'' airport--
     not unlike Midway. United and American argues that O'Hare 
     should be the only ``hub-and-spoke'' airport in metropolitan 
     Chicago.
       By shaping the argument in this fashion, United and 
     American guarantee that they will be allowed to continue and 
     dramatically expand their Fortress Hub monopoly at O'Hare. 
     According to their arguments, the lion's share of all the 
     origin-destination traffic in the region--and all of the 
     connecting and international traffic--should go to the sole 
     hub-and-spoke airport in the region: O'Hare. Any minor 
     overflow of ``point-to-point'' origin-destination traffic 
     that Midway could not handle could be addressed in a small 
     ``point-to-point'' airport like the South Suburban Airport or 
     Gary.
       What United and American gloss over is the fact there is 
     plenty of competition in the Chicago market in point-to-point 
     service. The real lack of competition in the Chicago market 
     is in the lack of additional hub-and-spoke competition to 
     challenge the hub-and-spoke duopoly of United and American at 
     Fortress O'Hare. It is this market dominance of the hub-and-
     spoke market--not the point-to-point--where lack of 
     competition gouges the business traveler and the traveler 
     from ``spoke'' cities. There is a desperate need for new 
     competitive hub-and-spoke service in the Chicago market and 
     the place to put that hub-and-spoke is the new South Suburban 
     Airport.
       No federal administration officials appear to be examining 
     whether spending 10 billion dollars (much of it from federal 
     taxpayers) at O'Hare makes economic sense when much more new 
     capacity to support competitive hub-and-spoke operations can 
     be constructed

[[Page 12854]]

     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 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

[[Page 12855]]

     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 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

[[Page 12856]]

     those spoils--contractors, political consultants, big public 
     relations firms, concessionaires and their friends in 
     corporate board rooms and the media.''
       Said Geils: ``The antitrust movement 100 hundred years ago 
     was aimed at breaking up precisely this sort of attack on the 
     public and consumers. After a century, we don't need new 
     laws. What we need are responsible public officials who won't 
     look the other way, who will carry out the sworn duties of 
     their office.''
       The hub-and-spoke airline market was made possible by 
     aviation deregulation two decades ago, which gave commercial 
     carriers the right to compete where, when and at what price 
     they wanted. But instead of the robust competition that 
     deregulation was intended to spawn, it led to increasing 
     concentrations of power of separate airlines at separate 
     ``Fortress Hub'' airports. While the industry will argue that 
     this leads to economies of scales that are passed along to 
     some air travelers in the form of price savings, government 
     and independent studies show that large numbers of 
     travelers--especially time-sensitive business travelers--are 
     actually paying billions more.
       The costs, said Geils, are paid in more than just higher 
     fares. ``They come in the form of more air pollution, more 
     noise and more safety hazards that the airlines are willing 
     to impose on O'Hare area communities--simply to protect and 
     expand the Fortress O'Hare monopoly. We now live in a bizarre 
     world where the desire to protect and profit from illegal 
     overcharges trump the protection of public health, safety and 
     quality of life.''
                                  ____


                   [From The Sun Times, May 20, 2000]

                     Gore's Interest Hardly public

                        (By Jesse Jackson, Jr.)

       At a recent Democratic fund-raiser hosted by Mayor Daley, 
     Al Gore, the vice president and presumptive Democratic 
     nominee, said: ``The Department of Transportation has said at 
     the present time it's a bit premature to build a third 
     airport . . . and I have agreed with that. What happens in 
     the future depends on the best public interest. I know there 
     is a strong public interest in making sure that the health of 
     O'Hare remains very strong.''
       Let's look at Gore, O'Hare and the public interest.
       First, is the ``best public interest'' served through local 
     or national control of federal transportation policy? Gore 
     came before the Congressional Black Caucus and said that 
     ``federalism'' would be an important issue in the 2000 
     campaign. Since George W. Bush is openly a ``states' 
     righter,'' I assumed that the vice president was appealing to 
     us for support by saying, as president, he would fight for 
     federal policies that contributed to the public interest. 
     Gore did that in the South Carolina flag issue, but in the 
     case of Elian Gonzalez in Florida and a third airport in 
     Chicago he, too, deferred to the locals.
       Gore is right that the DOT has recommended against building 
     a third airport now. However, Gore did not share the 
     rationale for the DOT's recommendation. Did he draw his 
     conclusion after a thoughtful series of dispassionate, hard-
     nosed government studies? Or were 2000 political 
     considerations uppermost? President Clinton has told some 
     Chicagoans privately that, ``Jesse Jr. may be right about the 
     airport, but this is an election year.'' However, at Daley's 
     request, the Clinton-Gore administration in 1997 took Peotone 
     off the nation's planning list, making it ineligible for 
     federal funds. Thus, one is led to conclude that, in Chicago, 
     local politics control federal aviation policy, rather than 
     the public interest. O'Hare is the new patronage system in 
     Chicago--which includes lucrative no-bid contracts, jobs and 
     vendor access.
       Is unbalanced growth in the public interest? Chicago 
     eventually plans to spend at least $15 billion to gold-plate 
     O'Hare (and Midway) and build additional runways at O'Hare. 
     For considerably less money--$2.3 billion--one could build 
     four runways and 140 gates and, more important, achieve 
     balanced economic growth. A recent downtown business study 
     said current plans will add $10 billion to the economy around 
     O'Hare and 110,000 new jobs. Such a plan will meet Chicago's 
     transportation needs for the foreseeable future and ``keep 
     the health of O'Hare . . . very strong,'' as Gore desires. 
     But such a policy will kill Peotone and its potential 236,000 
     new jobs, and will lead to increased class and caste 
     segregation in the Chicago metropolitan area--a community 
     already well known for such patterns. Was that understanding 
     part of Gore's calculation of the ``public interest'' when he 
     affirmed O'Hare and negated Peotone?
       The top 11 businesses in the 2nd Congressional District, 
     with nearly 600,000 residents, employ a mere 11,000 people--
     one job for every 60 people. By contrast, more than 100,000 
     people go to work in Elk Grove Village, a city of 36,000 
     people--three jobs for every person. The effect of Gore's 
     position on O'Hare will only add to this disparity. 
     Apparently, Gore sees the option as either a ``zero sum'' 
     game--if we build Peotone it will hurt O'Hare--or he is 
     willing to accept the consequences of unbalanced growth that 
     would make the southern part of Chicago and Cook County even 
     poorer, blacker, more segregated and dependent on government 
     and taxpayers. Is Gore claiming that such economic imbalance 
     and racial segregation are in the public interest?
       Are increased class and caste disparities in the political 
     interests of Gore? Quite naturally, politicians representing 
     areas of excess private jobs will want lower taxes and less 
     government--the Republican agenda. My area, in desperation, 
     will turn to the government as the lifeboat of last resort to 
     keep it afloat at a subsistence level, even as crime soars, 
     social needs rise, services fail and hardworking, middle-
     class taxpayers revolt against ``welfare cheats and free-
     loaders.'' With nowhere else to go, these African Americans 
     and poor people who vote will turn to Democrats to save them. 
     Thus, it will perpetuate a Democratic image as the party of 
     big government and undermine Gore's efforts to downsize and 
     ``reinvent'' government.
       Balanced economic growth better serves the entire region. 
     In Gore's own political interests, he should look anew at 
     O'Hare and Peotone and make another assessment of what is 
     truly in the public interest.
                                  ____


                       Memorandum--July 13, 2002

     To: Senator Peter Fitzgerald, Congressman Henry Hyde, 
         Congressman Jesse Jackson, Jr.
     From: Joe Karaganis.
     Re: Impact of the Lipinski/Oberstar Bill on Illinois Law and 
         Unchecked Condemnation Powers for Chicago to Condemn Land 
         in Other Communities.
       Sandy Murdock asked me to give you some background legal 
     analysis of the impact of the language in the Lipinski/
     Oberstar bill (see Sec. 3 of the bill) to create a federal 
     law override (preemption) of the Illinois Aeronautics Act--
     specifically as that impact relates to expanding Chicago's 
     power to engage in widespread condemnation and demolition of 
     residential and business properties in other municipalities 
     outside Chicago's boundaries.
       As you know, on July 9, 2002 Judge Hollis Webster of the 
     DuPage County Circuit Court entered a ruling declaring that 
     Chicago had no authority under Illinois law to acquire 
     property in other municipalities without complying first with 
     Sec. 47 of the Illinois Aeronautics Act, 620 ILCS 5/47 which 
     requires any municipality to first obtain a ``certificate of 
     approval'' from the Illinois Department of Transportation 
     before making any alteration or extension of an airport.
       Prior to her ruling, Chicago had proposed to acquire and 
     demolish over 500 homes in Bensenville before seeking a 
     certificate of approval. In testimony at the July 9, 
     injunction hearing before Judge Webster, the lead IDOT 
     official in charge of the IDOT approval process (James 
     Bildilli) testified:
       1. Without judicial enforcement of the Illinois Aeronautics 
     Act, Chicago could acquire and demolish all the homes and 
     businesses proposed in Bensenville and Elk Grove (over 500 
     homes and dozens of businesses) and only after such 
     acquisition and demolition, would IDOT some years later hold 
     a hearing in which IDOT would hear evidence and consider 
     whether the harm caused by the acquisition and demolition 
     justified IDOT's approval of the project. Essentially IDOT, 
     in reaching its decision on the certificate of approval, 
     would hear and consider evidence of the harm caused by the 
     acquisition and demolition and consider this harm as a basis 
     of its decision--but only after the harm (and destruction) 
     had been inflicted.
       2. Without judicial enforcement of the Illinois Aeronautics 
     Act, Chicago could acquire by condemnation or otherwise all 
     of Bensenville, Wood Dale, Elk Grove Village (thousands of 
     homes and businesses) and any other municipality--without any 
     need for a prior certificate of approval from IDOT under 
     Sec. 47.
       Thankfully, Judge Webster rejected Chicago and IDOT's 
     claims and applied and enforced the plain language of the 
     statute--prohibiting Chicago from acquiring and demolishing 
     homes and businesses in another municipality without first 
     obtaining a certificate of approval from IDOT.
       It is important for you to understand that the preemption 
     approach of the Lipinski Bill (as well as Durbin's) will not 
     simply federally destroy key provisions of the Illinois 
     Aeronautics Act (namely Sec. Sec. 47, 48, and 38.01). The 
     Lipinski legislation has the effect of destroying the entire 
     framework that Illinois has created under the Illinois 
     Constitution and Illinois Municipal Code for preventing 
     abuses of the state law condemnation power by municipalities. 
     Here is the Illinois constitutional and Illinois statutory 
     framework as upheld and enforced by Judge Webster:
       1. Under the Illinois Constitution, Chicago has only that 
     condemnation authority to condemn lands in other 
     municipalities for airport purposes that is expressly 
     delegated to Chicago by the laws of the State of Illinois. 
     Article VII, Section 7 of the Illinois Constitution. Under 
     long standing Illinois law (``Dillon's rule'' followed in 
     almost all of the 50 states) any powers delegated to a 
     municipality by the General Assembly under this 
     constitutional provision are narrowly construed against 
     assertions of authority by the municipality.
       2. The Illinois General Assembly has delegated to Chicago 
     the authority to condemn

[[Page 12857]]

     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 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.

[[Page 12858]]

       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 resolve 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 (``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,

[[Page 12859]]

     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 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

[[Page 12860]]

     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 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]
       Supporters have cited the Commerce Clause in defending this 
     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 airports, 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 
     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

[[Page 12861]]

     required crash zones at the end of runways, forcing them to 
     either give up their homes or live in devalued property in 
     great risk. Because most of the region's air traffic growth 
     would use the South Suburban airport where pollution and 
     safety buffers are required under current federal standards, 
     fewer total people in the region would be subjected to health 
     and safety risks.
       Key to the SOC Solution is the construction of a truly 
     regional hub airport in the South Suburbs, rather than an 
     inadequate ``reliever'' airport as envisioned under the 
     Daley-Ryan plan. Just as New York City and Washington, D.C. 
     have more than one hub airport, a true regional airport in 
     the South Suburbs would give Chicago the kind of potential it 
     needs with three hub airports (O'Hare, Midway and Peotone) to 
     maintain its aviation dominance for decades. Despite the 
     long-made assertions by entrenched interests, such as United 
     and American airlines, that the Chicago area didn't need a 
     second hub airport, Midway already is developing into a hub 
     simply because of market forces. With Midway reaching 
     capacity in just a few years, and O'Hare already at capacity, 
     the sounds of ``no one will come to Peotone'' no longer are 
     heard.
       Finally, the SOC Solution will protect taxpayers by 
     creating an oversight board of improvements at all airports, 
     including the south suburban airport and Midway.
       ``The SOC Solution is not a fragmented plan that simply 
     focuses on O'Hare, which under the Daley-Ryan proposal is 
     merely an instrument for extending the political and economic 
     might of a select few,'' said Geils. ``Ours is a plan for a 
     regional airport system--one that is based on common sense 
     and what is fair and good for the entire public.''

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


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


[[Page 12862]]

                       Grave Concerns Near O'Hare

                         (By Robert C. Herguth)

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

                                                Rosemary Mulligan,


                           State Representative 55th District,

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

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

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

[[Page 12863]]

     
                                  ____
                     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 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 lead the nation in runway 
     incursions for several years. A large part of that incursion 
     problem is the parallel runway layout; aircraft must taxi 
     across runways to get to and from the terminals.
       3. The major difference in Governor Ryan's counter proposal 
     is the elimination of the southern most runway. If this 
     runway were eliminated, the capacity of the new airport would 
     be less than we have now during certain conditions (estimated 
     at about 40% of the time). If you look at Mayor Daley's plan, 
     it calls for six parallel east-west runways and two parallel 
     northeast-southwest runways. The northeast-southwest 
     parallels are left over from the current O'Hare layout. These 
     two runways simply won't be usable in day-to-day operations 
     because of the location of them (they are wedged in between, 
     or pointed at the other parallels). We would not use these 
     runways except when the wind was very strong (35 knots or 
     above) which we estimate would be less than 1% of the time. 
     That leaves the six east/west parallels for use in normal 
     day-to-day operations. This is the same number of runways 
     available and used at O'Hare today. If you remove the 
     southern runway (Governor Ryan's counter proposal), you are 
     leaving us five runways which is one less than we have now. 
     That means less capacity than today's O'Hare during certain 
     weather conditions. With good weather, you may get about the 
     same capacity we have now. If this is the case, then why 
     build it?
       4. The Daley-Ryan plans call for the removal of the NW/SE 
     parallels (Runways 32L and 32R). This is a concern because 
     during the winter it is common to have strong winds out of 
     the northwest with snow, cold temperatures and icy 
     conditions. During these times, it is critical to have 
     runways that point as close as possible into the wind. 
     Headwinds mean slower landing speeds for aircraft, and they 
     allow for the airplane to decelerate quicker after landing 
     which is important when landing on an icy runway. Landing 
     into headwinds makes it much easier for the pilot to control 
     the aircraft as well. Without these runways, pilots would 
     have to land on icy conditions during strong cross-wind 
     conditions. This is a possible safety issue.
       These are the four major concerns we have with the Daley-
     Ryan runway plans. There are many more minor issues that must 
     be addressed. Amongst them are taxiway layouts, clear zones 
     (areas off the ends of each runway required to be clear of 
     obstructions), ILS critical areas (similar to clear zones, 
     but for navigation purposes), airspace issues (how arrivals 
     and departures will be funneled into these new runways) and 
     all sorts of other procedural type issues. These kinds of 
     things all have to go through various parts of the FAA 
     (flight standards, airport certification etc.) eventually. 
     These groups should have been involved with the planning 
     portion from day one. Air traffic controllers at the tower 
     are well versed on what works well with the current airport 
     and what does not. We can provide the best advice on what 
     needs to be accomplished to increase capacity while 
     maintaining safety. It is truly amazing that these groups 
     were not consulted in the planning of a new O'Hare. The 
     current Daley-Ryan runway plans, if built as publicized, will 
     do little for capacity and/or will create serious safety 
     issues. This simply cannot happen. The fear is that the 
     airport will be built, without our input, and then handed to 
     us with expectations that we find a way to make it work. When 
     it doesn't, the federal government (the FAA and the 
     controllers) will be blamed for safety and delay problems.
           Sincerely,
                                                    Craig Burzych,
     Facility Representative, NATCA-O'Hare Tower.
                                  ____



                                     House of Representatives,

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

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

     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,

[[Page 12864]]

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


                           related questions

       If the Region needs new runways, what is the sense of 
     spending over several billion dollars--much of it public 
     money--to build the World Gateway Program at O'Hare if we 
     decide that new runway capacity should be built elsewhere? If 
     the decision is to build the new runways at O'Hare, then much 
     of the 5-6 billion dollar terminal and roadway expansion 
     proposed for O'Hare may be justified.
       But if the decision is that the new runway capacity should 
     be built elsewhere, then the proposed multi-billion dollar 
     expansion makes no sense. We will be spending billions of 
     dollars in taxpayer funds for a massive project that standing 
     alone--without new runways--will not add any new capacity to 
     our region.
       The airlines know this fact and that is why they--and their 
     surrogates at the Civic Committee and the Chicagoland 
     Chamber--are pushing for new runways.
       If the Region needs new runways and we wish to explore the 
     alternative of putting the new runways in at O'Hare, what is 
     the full cost of expanding O'Hare as opposed to constructing 
     a new airport? If others wish to explore the alternative of 
     an expanded O'Hare as the place to build the new runways 
     capacity for the region, let's have an honest exploration and 
     discussion of the full costs of expanding O'Hare with new 
     runways and compare it to the cost of building the new 
     airport. Chicago and the airlines already know what the 
     components of an expanded O'Hare would be.
       These components are laid out in Chicago's ``Integrated 
     Airport Plan and include a new ``quad runway'' system for 
     O'Hare and additional ground access through ``western 
     access''.
       Based on information available, we believe that the cost of 
     the O'Hare expansion would exceed ten billion dollars. These 
     costs should be compared with the costs of a new airport.
       Are the delay and congestion problems experienced at O'Hare 
     self-inflicted? Sadly, when Chicago and the major O'Hare 
     airlines advocated lifting of the ``slot'' restrictions at 
     O'Hare and other major ``slot'' controlled airports, the 
     Clinton Administration and others ignored the warnings of 
     Congressman Jackson, and myself that the airport could not 
     accommodate the additional flights without a chaotic increase 
     in delays and congestion. Indeed, the chaos we predicted has 
     come true and we now have a ``Camp O'Hare'' where air traffic 
     is managed by cancellation rather than by adequate service.
       Like Cassandra, our prophecy was ignored. The Clinton 
     Administration endorsed lifting the slot controls and chaos 
     ensued.
       But just because our warnings were ignored doesn't mean 
     that practical solutions should continue to be ignored. The 
     delays and congestion were predictable and certain--predicted 
     based on delay/capacity analysis conducted by the FAA. Just 
     as certain are the short term remedies.
       Just as the congestion was brought on by overstuffing 
     O'Hare with more aircraft operations than it can handle, the 
     congestion and delay can immediately be reduced to acceptable 
     levels by reducing the scheduled air traffic to the level 
     that can be easily accommodated by O'Hare without the risk of 
     unacceptable delays. The delay chaos was self-inflicted by 
     ignoring the flashing warnings put 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:

[[Page 12865]]

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

[[Page 12866]]

     charged to air travelers. These funds don't belong to the 
     airlines. They are federal funds collected and disbursed 
     through a joint program administered by the FAA and the 
     airport operator.
       Nor are these federal taxpayer funds ``Chicago's'' money. 
     Chicago is simply a tax collection agent for the federal 
     government.
       But how do we get the funds from O'Hare to the new airport? 
     We do it the same way Mayor Daley is transferring funds from 
     O'Hare to Gary and the same way he proposed getting federal 
     funds collected at O'Hare to the Lake Calumet project: a 
     regional airport authority.


                              suggestions

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



                                     House of Representatives,

                                                   Washington, DC.

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

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

  Mr. Speaker, I reserve the balance of my time.
  Mr. LIPINSKI. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise today to express my strongest possible support 
for H.R. 3479, the National Aviation Capacity Expansion Act of 2002. 
This measure will help end over 20 years of aviation gridlock at the 
most important crossroads of American aviation by modifying and 
codifying a historic agreement between Republican Governor George Ryan 
of Illinois and Democratic Mayor of Chicago Rich Daley that would 
expand and modernize O'Hare International Airport.
  In December 2000, I spoke to Speaker Hastert, Governor Ryan and Mayor 
Daley, asking them for their help in solving this national and 
international aviation capacity crisis. I am very happy to say that all 
these men have helped in moving this legislation forward.
  Chicago O'Hare is a vital economic engine in Chicago, the State of 
Illinois, the Midwest and the entire Nation. It serves as the only 
major dual hub with United and American Airlines basing significant 
equipment, employees and assets at the facility. O'Hare serves more 
than 190,000 travelers per day, nearly 73 million in the year 2000. It 
is the world's busiest airport in the number of passengers. Forty-seven 
States have direct access to O'Hare.
  But O'Hare needs to be redesigned to meet the demands of today's 
marketplace. Designed in the 1950s, this airport has intersecting 
runways and a layout designed for smaller aircraft. By simply 
reconfiguring the airport layout, many weather-related delays could be 
avoided. By replacing old runways with safer, parallel configurations, 
delays and cancellations would be greatly reduced, eliminating delays 
that often ripple through the entire Nation. Ninety percent of O'Hare's 
modernization will be paid by airline and airport-generated funds, 
including passenger facility charges, landing fees, concessions and 
bonds. The rest of these funds will come through the regular, and I 
repeat, regular FAA process for airport construction, and this 
legislation is very clear on that point.
  The Governor-Mayor agreement also includes a south suburban airport 
near Peotone. This legislation will ask the FAA to give full 
consideration to Peotone. Just as expanding O'Hare does not eliminate 
the need for a third airport, building Peotone will not replace O'Hare 
modernization. They are not mutually exclusive. Both are needed to 
address serious aviation capacity problems in the region and the 
Nation. Simply put, just as the city wants to move ahead with using its 
own funds to expand its own airport, this agreement allows the State to 
do the same for Peotone.
  While expanding O'Hare and building Peotone are needed to address the 
region and the Nation's aviation capacity, forward thinkers will agree 
that even more capacity will be needed. That is why this measure 
includes full consideration of commercial airports at Gary, Indiana and 
Rockford, Illinois.

[[Page 12867]]

  This legislation also addresses traffic congestion along O'Hare's 
Northwest Corridor, including western airport access, and maintains the 
quality of life for residents near these airports. We have carefully 
crafted clean air and environmental language that is acceptable to all 
parties involved, including 15 environmental groups and the Sierra 
Club. In addition, the new runway configuration will reduce by half the 
number of people impacted by noise, and this agreement also includes 
$450 million in funds for soundproofing.
  Some might call this legislation unprecedented, but it is clear that 
the Chicago situation is unprecedented and unique.

                              {time}  1615

  When the Subcommittee on Aviation held a hearing on this issue in 
August of 2001, no other similar situation could be found where a State 
has veto power over a city's airport project.
  In closing, Mr. Speaker, I wish to thank the gentleman from Florida 
(Mr. Mica) and the gentleman from Alaska (Mr. Young) for their great 
help with this legislation. I would also like to thank the gentleman 
from Minnesota (Mr. Oberstar) for his efforts in working with me on 
this legislation. I agree with him that it is important that we craft a 
measure that is good not only for the Chicago region, but for the 
Nation as a whole. It is my hope that we can pass this legislation out 
of the House today, because I firmly believe that this bill will do 
more to end the aviation gridlock that plagues the American flying 
public than any other measure this Congress could pass.
  Mr. Speaker, I reserve the balance of my time.
  Mr. JACKSON of Illinois. Mr. Speaker, I yield myself 30 seconds.
  Clearly, Mr. Speaker, the fact that we are debating this bill on the 
floor of the Congress sets a dangerous precedent by stating that 
Congress, not the FAA, not the Department of Transportation, not 
aviation experts, but Congress shall build and plan airports. That is 
what we are discussing today. If Congress was not planning to build an 
airport, we would not be here discussing this bill.
  Mr. Speaker, I yield such time as he may consume to the gentleman 
from Illinois (Mr. Hyde), the chairman of the Committee on 
International Relations.
  Mr. HYDE. Mr. Speaker, my congressional district encompasses O'Hare 
International Airport and many of the residential communities that 
surround O'Hare, communities, I might add, that will lose hundreds, if 
not thousands, of homes and businesses to airport development should 
this expansion plan be approved.
  Please do not be deceived because this bill is on the Suspension 
Calendar. As the gentleman from Illinois (Mr. Jackson) said, it is 
highly controversial, involves constitutional issues, antitrust issues, 
environmental issues and, most seriously, the issue of bulldozing an 
entire community of low-income homes, largely peopled by the Hispanic 
population.
  Northern Illinois does need additional airport capacity; everyone 
agrees to that. O'Hare is at capacity. So the real question is whether 
we build a new airport that is safe and can expand with time, or 
whether we refurbish the old airport.
  The proponents of this bill that the gentleman from Illinois (Mr. 
Kirk) and the gentleman from Illinois (Mr. Lipinski) are advancing want 
to double the amount of flights going into the busiest airport in the 
world each year to accommodate 1,600,000 operations a year. Opponents 
like the gentleman from Illinois (Mr. Jackson) and myself say, build a 
new airport. Build one far away from urban areas that will not do 
violence to the environment and one that can expand as the future of 
our air traffic grows.
  A new airport can be built faster and cheaper than expanding O'Hare, 
but a lot of proponents of the bill object to that. Why? Well, I can 
think of two reasons. One is the City of Chicago would not own the new 
airport and the City of Chicago has to own that airport, and the other 
reason is the two major airlines that dominate O'Hare might find some 
competition, and competition is not a healthy thing, some people think.
  This bill is corporate welfare of the most blatant sort. It is being 
marketed as a great leap forward for airport development; but it is a 
death blow to local government, because it forbids the Illinois 
legislature from having any voice in the deal between the City of 
Chicago and the governor of Illinois to double the air traffic. This 
bill suggests the State of Illinois has approved the deal. Well, if the 
Illinois general assembly is no longer relevant, if the Illinois 
Aeronautics Act is unimportant, I guess they are right. I do not know 
what they propose to do about the 10th amendment.
  The City of Chicago has only those powers given to it by the Illinois 
general assembly. Chicago is a municipal government, a political 
subdivision created and empowered by the State legislature, and this 
State legislature has never given to Chicago or to the Governor, for 
that matter, the authority to, on their own, authorize the massive 
expansion of O'Hare. Thousands of people's homes and businesses will be 
bulldozed; two cemeteries with well over 1,600 graves dating back to 
the 1840s will be invaded by the same bulldozers.
  This bill radically restructures the constitutional relationship 
between Congress, the States, and their municipalities. Why, it creates 
what amounts to a new Federal zoning law, an idea I am sure our 
constituents will welcome.
  If, however, establishing a dangerous precedent is not reason enough 
to vote against this legislation, let me add some more. This 
legislation ratifies a deal that was struck without adequate public 
participation, without an open planning process; and despite the public 
having no say in this matter, the airlines certainly got their say. 
This is corporate welfare utilizing tax dollars to subsidize a 
monopoly.
  Right now, United and American Airlines have a stranglehold on the 
market at home, forcing Illinois residents to pay far too much for 
tickets. The Government Accounting Office estimates this market lock 
costs Chicago travelers $623 million a year in overcharges.
  This legislation will destroy two cemeteries and the single largest 
concentration of federally assisted affordable housing in one of the 
Nation's most affluent counties. These are the homes of low-income 
people and other minorities, particularly Hispanics. Proponents claim 
only 500 homes will need to be torn down; the truth is closer to 1,500.
  This proposed expansion will ruin the quality of life for more than a 
million people living near O'Hare. It will increase air pollution in a 
region that is already nonconforming under Federal air regulations and 
will increase noise pollution to horrendous levels for those living 
near O'Hare.
  What about safety? Putting 1.6 million planes a year into the O'Hare 
airspace, which is limited and already overcrowded with 900,000 
flights, does not make sense. It increases a risk of a serious 
accident. I could go on and on and on.
  Let me just say this: when the big and the powerful go after the weak 
and the vulnerable, usually the big and the powerful win. I certainly 
do not speak for the big and the powerful. I am speaking for the 
families whose homes are going to be taken, the families whose 
relatives and ancestors are buried in those graves, and I am saying 
that we have an expectation that this Congress will think of the human 
side of this, not just the economic side of it.

                  Moving Graves Can Be ``Royal Mess''

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

                         (By Robert C. Herguth)

       In the 1990s, St. Louis' Lambert Airport moved thousands of 
     bodies from the crumbling, mostly black Washington Park 
     Cemetery to make way for a transit line and create a larger, 
     flatter buffer for runways.
       Trouble, it turned out, was almost as bountiful as bones.
       An archaeologist hired to help with disinterment was 
     accused of snatching limbs and yanking out teeth, supposedly 
     for research, and later of hiding corpses to ensure he got 
     paid. A state inspector climbed into a burial vault and held 
     what was described as a ``mock funeral.'' There also were 
     reports of coffins being accidentally pulverized by 
     machinery.

[[Page 12868]]

       ``That was a royal mess,'' a person associated with the 
     project recently remarked.
       While an extreme example, the St. Louis work demonstrates 
     how bad an already difficult and delicate process get.
       And it serves as a cautionary tale as the City of Chicago--
     using one of the same consultants involved in the Washington 
     Park effort--makes plans to bulldoze two historic suburban 
     cemeteries, and 433 acres of homes and businesses, to 
     accommodate a proposed O'Hare Airport runway expansion.
       ``We've thought about those kinds of things,'' said Bob 
     Sell, referring to Lambert's problems
       The Loop attorney has dozens of relatives buried at St. 
     Johannes Cemetery, which is targeted for relocation, along 
     with tiny Resthaven Cemetery.
       ``The notion of someone going to the cemetery and putting a 
     shovel to my family member is horrible. That something could 
     go wrong in that process, it makes me sick to my stomach.''
       Like many homeowners in the proposed expansion zone, 
     leaders of Resthaven and St. Johannes don't want to sell. One 
     and perhaps both graveyards will fight the city in court, 
     cemetery officials said.
       The process, as of last Tuesday, is in a holding pattern 
     because of a DuPage County judge's ruling in a different 
     lawsuit. The judge ordered Chicago to halt land buys until it 
     receives a state permit, something city officials believe is 
     unnecessary and will appeal. Meanwhile, the city won't even 
     be negotiating sales.


                       where to move the remains

       In another room Tuesday in another part of DuPage, a 
     different aspect of the same thorny issued played out as two 
     of the city's hired guns met for the first time with leaders 
     of Resthaven to ``open up the dialogue.''
       That's how Jeff Boyle--a former top aide to Mayor Daley now 
     being paid $240 an hour as a no-bid consultant--portrayed the 
     meeting at the Bensenville Community Public Library.
       Resthaven president Lee Heinrich, vice president Bob Placek 
     and their attorney said they were there to listen to Boyle 
     and another consultant, Robert Merryman of O.R. Colan 
     Associates.
       Merryman--after Boyle nearly canceled the meeting because 
     of the presence of a reporter and the lawyer--outlined 
     several options, all of which involved the city buying the 
     cemetery land.
       ``Let's start with the assumption that you have to go,'' he 
     said softly, speaking in the consoling tones of a funeral 
     director.
       ``The airport could simply purchase Resthaven and Resthaven 
     is no more,'' he said.
       The second possibility, he said, would be to ``functionally 
     replace Resthaven'' by building ``a new Resthaven'' 
     elsewhere.
       Third, he said, the cemetery could be moved to another 
     graveyard, where ``a section can be Resthaven.''
       Headstones and monuments would go with the remains, the 
     city would cover costs, and if some families wanted relatives 
     reburied elsewhere, that would be fine, too, he said. 
     Relatives could decide who ``disinters and reinters the 
     body,'' and help monitor the process, he said.
       Merryman's company was involved in the Washington Park 
     Cemetery relocation. The firm did not select the 
     archaeologist facing the allegations of desecrating the 
     remains and, in fact, was asked ``to come and correct the 
     situation,'' according to Chicago Aviation Department 
     spokeswoman Monique Bond.
       The firm also helped handle the ``land acquisition 
     aspects'' of moving graves from Bridgeton Memorial Cemetery 
     St. Louis, which currently is being excavated to make way for 
     new and longer runways at Lambert, said Lambert spokesman 
     Mike Donatt.


                        how a cemetery is moved

       Locating and moving remains can be a tough process, but 
     it's one played out quite frequently for road, airport and 
     other public works projects, said Randolph Richardson.
       He owns Kentucky-based Richardson Corp., which does the 
     physical part of relocating graves.
       For big jobs, Richardson may bring in 15 workers in blue 
     jeans and knee boots, and heavy equipment. After mapping a 
     cemetery, a worker with a ``probe rod'' tries to gauge the 
     depth of graves and directs a backhoe operator on how far to 
     dig. ``If the grave itself is 6 feet deep, you dig down 
     around 4\1/2\ feet, and the rest of it is hand digging,'' he 
     said.
       ``Say we've got a row of 50 graves, we'd start at the end 
     with a backhoe, the man with the probe rod is guiding the 
     backhoe to tell him how deep to go, we dig a trench to expose 
     those 50 graves, that allows us to get the men in there to 
     work,'' he said.
       Bodies are placed in individual wooden boxes--there are 
     several sizes--unless coffins are intact, he said, adding 
     that his workers may get tetanus shots before a project 
     because of old rusty nails.
       Caskets are put on trucks and driven to their new resting 
     place, he said. His company typically charges between $1,000 
     and $1,500 per body.
       Richardson, whose firm relocated some of the bodies from 
     St. Louis' Washington Park, recalls some of the trouble 
     there, but insists things usually are more smooth.


                      guards questioning visitors

       Boyle and Chicago's first deputy aviation commissioner, 
     John Harris, have said they want to handle their cemetery 
     situation with dignity and sensitivity. But the city is 
     having its own public relations headaches.
       The cemeteries are outside Chicago's borders, but can only 
     be reached by a city-owned access road monitored by city 
     guards.
       Twice this month, a guard approached a St. Johannes visitor 
     at the cemetery, questioned the person and asked that they 
     ``sign in.''
       In the first instance, the visitor said, he was interrupted 
     while praying at a grave site, and after refusing to sign in 
     was met by five Chicago police cars on the access road. The 
     visitor in the second case was the pastor of the church that 
     owns St. Johannes.
       Just before being confronted--on Wednesday, after the 
     judge's ruling--the minister was surprised to find four O.R. 
     Colan employees nosing around graves at St. Johannes, 
     apparently taking down names from headstones, although they 
     had no permission to be there.
       ``They said they were doing a study,'' Sell said. ``They're 
     trespassing on private property.''
       Merryman did not return phone calls. City officials were at 
     a loss to explain.
       But Roderick Drew, a spokesman for Daley, said Friday that 
     there's been a ``change in policy'' that ``nobody will have 
     to sign in any more.''
       ``Anybody who wants access to that cemetery during those 
     posted hours will not be stopped, will not have to sign in,'' 
     he said, adding that the sign-in ``has turned out to be a 
     much greater inconvenience to the people who access it.''
                                  ____



                  NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

                                         Chicago O'Hare Tower,

                                       Chicago, IL, Nov. 30, 2001.
     Hon. Peter Fitzgerald,
     U.S. Senate, Washington, DC.
       Senator Fitzgerald, as requested from your staff, I have 
     summarized the most obvious concerns that air traffic 
     controllers at O'hare have with the new runway plans being 
     considered by Mayor Daley and Governor Ryan. They are listed 
     below along with some other comments.
       1. The Daley and Ryan plans both have a set of east/west 
     parallel runways directly north of the terminal and in close 
     proximity to one another. Because of their proximity to each 
     other (1200') the cannot be used simultaneously for arrivals. 
     They can only be used simultaneously if one is used for 
     departures and the other is used for arrivals, but only 
     during VFR (visual flight rules), or good weather conditions. 
     During IFR (instrument flight rules, ceiling below 1000' and 
     visibility less than 3 miles) these runways cannot be used 
     simultaneously at all. They basically must be operated as one 
     runway for safety reasons. The same is true for the set of 
     parallels directly south of the terminal; they too are only 
     1200' apart.
       2. Both sets of parallel runways closest to the terminal 
     (the ones referred to above) are all a minimum of 10,000' 
     long. This creates a runway incursion problem, which is a 
     very serious safety issue. Because of their length and 
     position, all aircraft that land or depart O'Hare would be 
     required to taxi across either one, or in some cases two 
     runways to get to and from the terminal. This design flaw 
     exists in both the Daley and the Ryan plan. A runway 
     incursion is when an aircraft accidentally crosses a runway 
     when another aircraft is landing or departing. They are 
     caused by either a mistake or misunderstanding by the pilot 
     or controller. Runway incursions have skyrocketed over the 
     past few years and are on the NTSB's most wanted list of 
     safety issues that need to be addressed. Parallel runway 
     layouts create the potential for runway incursions; in fact 
     the FAA publishes a pamphlet for airport designers and 
     planners that urge them to avoid parallel runway layouts that 
     force taxiing aircraft to cross active runways. Los Angeles 
     International airport has lead the nation in runway 
     incursions for several years. A large part of their incursion 
     problem is the parallel runway layout; aircraft must taxi 
     across runways to get to and from the terminals.
       3. The major difference in Governor Ryan's counter proposal 
     is the elimination of the southern most runway. If this 
     runway were eliminated, the capacity of the new airport would 
     be less than we have now during certain conditions (estimated 
     at about 40% of the time). If you look at Mayor Daley's plan, 
     it calls for six parallel east-west runways and two parallel 
     northeast-southwest runways. The northeast-southwest 
     parallels are left over from the current O'Hare layout. These 
     two runways simply won't be usable in day-to-day operations 
     because of the location of them (they are wedged in between, 
     or pointed at the other parallels). We would not 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

[[Page 12869]]

     which is one less than we have now. That means less capacity 
     than today's O'Hare during certain weather conditions. With 
     good weather, you may get about the same capacity we have 
     now. If this is the case, then why build it?
       4. The Daley-Ryan plans call for the removal of the NW/SE 
     parallels (Runways 32L and 32R). This is a concern because 
     during the winter it is common to have strong winds out of 
     the northwest with snow, cold temperatures and icy 
     conditions. During these times, it is critical to have 
     runways that point as close as possible into the wind. 
     Headwinds mean slower landing speeds for aircraft, and they 
     allow for the airplane to decelerate quicker after landing 
     which is important when landing on an icy runway. Landing 
     into headwinds makes it much easier for the pilot to control 
     the aircraft as well. Without these runways, pilots would 
     have to land on icy conditions during strong cross-wind 
     conditions. This is a possible safety issue.
       These are the four major concerns we have with the Daley-
     Ryan runway plans. There are many more minor issues that must 
     be addressed. Amongst them are taxiway layouts, clear zones 
     (areas off the ends of each runway required to be clear of 
     obstructions), ILS critical areas (similar to clear zones, 
     but for navigation purposes), airspace issues (how arrivals 
     and departures will be funneled into these new runways) and 
     all sorts of other procedural type issues. These kinds of 
     things all have to go through various parts of the FAA 
     (flight standards, airport certification etc.) eventually. 
     These groups should have been involved with the planning 
     portion from day one. Air traffic controllers at the tower 
     are well versed on what works well with the current airport 
     and what does not. We can provide the best advice on what 
     needs to be accomplished to increase capacity while 
     maintaining safety. It is truly amazing that these groups 
     were not consulted in the planning of a new O'Hare. The 
     current Daley--Ryan runway plans, if built as publicized, 
     will do little for capacity and/or will create serious safety 
     issues. This simply cannot happen. The fear is that the 
     airport will be built, without our input, and then handed to 
     us with expectations that we find a way to make it work. When 
     it doesn't, the federal government (the FAA and the 
     controllers) will be blamed for safety and delay problems.
           Sincerely,
                                                    Craig Bureych,
     Facility Representative, NATCA--O'Hare Tower.
                                  ____

                                ROBERT J. SELL, ELECTED SPOKESMAN,


                           ST. JOHN'S UNITED CHURCH OF CHRIST,

                                   Bensenville, IL., Mar. 5, 2002.
     Congressman Henry J. Hyde,
     Rayburn House Office Building, Washington, DC.

    Re: O'Hare Airport Expansion/St. John's United Church of Christ

       Dear Representative Hyde: From press reports, I understand 
     that Governor Ryan and Mayor Daley have submitted to Congress 
     their proposal for the expansion of O'Hare Airport, which 
     will be the subject of hearings on Wednesday, March 6th. I 
     also understand that you will be given the opportunity to 
     testify at these hearings.
       Although I am sure that you will cover many important 
     issues in your testimony, our hope is that you will alert the 
     other members of Congress to an additional issue that is of 
     great importance to me, my family and the members of Churches 
     within your District. This issue is the treatment of two 
     religious cemeteries that stand in the path of the runways 
     proposed by the City of Chicago and Governor Ryan (see 
     attached maps).
       The two cemeteries are St. Johannes Cemetery (which is 
     owned and maintained by St. John's United Church of Christ) 
     and Resthaven Cemetery (affiliated with the Methodist 
     Church). Most people have never heard of these cemeteries, 
     but they serve as the final resting place of some of the 
     first Illinois pioneers, as well as many of their modern era 
     descendants. These cemeteries have served this purpose for 
     over 150 years, since their first Church members were laid to 
     rest in the 1840's.
       As an example, my great, great, great grandfather, 
     Christian Dierking came to the United States in the 1840's 
     when the land around O'Hare was wild land. He settled in land 
     that is now occupied by O'Hare's United Airlines Terminal. 
     One of my other great, great, great grandfathers, Henry Kolze 
     and his brothers, William and Frederick also came to the area 
     in the 1840's and were heavily involved in local Republican 
     politics in the 1850's and 1860's. The Schiller Park 
     Historical Society has reported that Abraham Lincoln once 
     visited property owned by William Kolze during one of his 
     election campaigns. Together, they and their families and 
     neighbors constructed the first Church buildings.
       These individuals, their descendants and an estimated 1600 
     other souls lie at rest at S. Johannes Cemetery, including 
     some buried within the last year. Hundreds of others lie at 
     rest at Resthaven Cemetery, including one buried in the last 
     few months. These people were mayors, business owners, 
     farmers, factory workers, soldiers and housewives. The 
     Chicago Sun Times has also reported that those buried at 
     Resthaven include members of the Potowatamie tribe. But, most 
     importantly to us, they were mothers and fathers, 
     grandmothers and grandfathers, brothers and sisters, and 
     children.
       Although the City of Chicago's and the Governor's proposals 
     have mentioned the relocation of homes and businesses, they 
     curiously have failed to mention the treatment of these 
     sacred burial grounds. Unfortunately, Church members have 
     received letters from the Governor's office confirming that 
     completion of the expansion plan would require removal of the 
     cemeteries, and the Chicago Sun Times has reported the City's 
     confirmation of this fact. The Church, its members, and the 
     families of members past and present are understandably 
     upset.
       It is my understanding that, pursuant to Illinois law, an 
     active cemetery may not be removed without approval of the 
     cemetery's owner. St. John's Church, and the caretakers of 
     Resthaven Cemetery, have stated publicly and to State of 
     Illinois officials that they will not provide this consent, 
     and will exercise all available remedies to protect the 
     sanctity of their hallowed ground. It may be that 
     Representative Lipinski's and Senator Durbin's federal 
     legislation seeks to preempt the foregoing Illinois statutes, 
     just as it seeks to preempt other Illinois statutes that 
     stand in the way of the O'Hare Plan. However, we would hope 
     that they are not at the same time attempting to discard the 
     fundamental religious protections offered by our 
     Constitution.
       We would appreciate it if you would enter this letter into 
     the record, to provide this important information to those 
     deliberating about the O'hare Plan. On behalf of St. John's 
     United Church of Christ, my family and the tens of thousands 
     of family members of those at rest in these Cemeteries, thank 
     you for your kind consideration and any assistance that you 
     may be able to provide.
           Very Truly Yours,
                                                   Robert J. Sell,
     Elected Spokesman, St. John's United Church of Christ.
                                  ____

                                           University of Illinois,


                                               College of Law,

                                     Champaign, IL, March 1, 2002.
     Hon. Henry J. Hyde,
     U.S. House of Representatives,
     Rayburn House Office Bldg., Washington, DC.

  Re: Proposed Federal Legislation Granting New Powers to the City of 
                                Chicago

       Dear Congressman Hyde: As you know, I serve as the Albert 
     E. Jenner Professor of Law at the University of Illinois Law 
     School. I have authored a leading course book on 
     Constitutional Law. In addition, I co-author, along with my 
     colleague John Nowak, the widely-used multi-volume Treatise 
     on Constitutional Law, published by West Publishing Company. 
     In addition to my books, I have taught and researched in the 
     area of Constitutional Law since 1974.
       I have been asked to give my opinion on the 
     constitutionality of proposed federal legislation entitled 
     ``National Aviation Capacity Expansion Act,'' identical 
     versions of which have been introduced in both the Senate and 
     the House of Representatives by Senator Durbin and 
     Congressman Lipinski (S. 1786, HR 3479), hereafter the 
     ``Durbin-Lipinski legislation.''
       The Durbin-Lipinski legislation seeks to enact 
     Congressional approval of a proposal to construct a major 
     alteration of O'Hare Airport in Chicago. While this 
     legislation focuses on Chicago and the State of Illinois, the 
     issues raised by the legislation have serious constitutional 
     implications for all 50 States.
       There are two key components of the legislation that have 
     been the subject of my examination.
       First Section 3(a)(3) attempts to give the City of Chicago 
     (a political subdivision and instrumentality of the State of 
     Illinois) the legal power and authority to build a proposed 
     major alteration of O'Hare even though state law does not 
     authorize Chicago to build the alteration without first 
     receiving a permit from the State of Illinois. Chicago, as a 
     legal entity, is entirely a creation of state--not federal 
     law--and Chicago's authority to build airports is essentially 
     an exercise of state law power delegated to Chicago by the 
     Illinois General Assembly.
       The requirement that Chicago first obtain a state permit is 
     an integral and essential element of that delegation of state 
     power. The U.S. Constitution prohibits Congress (1) from 
     invading and commandeering the exercise of state power to 
     build airports, and (2) from changing the allocation of 
     state-created power between the State of Illinois and its 
     political subdivisions. The U.S. Constitution, in short, 
     prohibits Congress from essentially rewriting state law 
     dealing with the delegation of state power by eliminating the 
     conditions, restrictions, and prohibitions imposed by the 
     Illinois General Assembly on that delegation. These 
     constitutional restrictions on Congress' power--which 
     prohibit Congress from requiring states to change their state 
     laws governing cities--are often termed Tenth Amendment 
     restrictions.
       Similarly, the provisions of Section 3(f) of the proposed 
     Durbin-Lipinski legislation are

[[Page 12870]]

     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 a political subdivision in violation of 
     the conditions, limitations or prohibitions imposed by the 
     State in delegating the state authority, are plainly ultra 
     vires, illegal, and unenforceable. The City of Chicago is a 
     creature of state law, not federal law.
       4. The power exercised by any state political subdivision 
     (e.g., the power to construct airports) is in reality a power 
     of the State--not inherent in the existence of the political 
     subdivision. For the political subdivision to have the legal 
     authority to exercise that state power, there must be a 
     delegation of that state power by the State to the political 
     subdivision. Further, it is axiomatic that any such 
     delegation of state power to a political subdivision must be 
     exercised in accordance with the conditions, limitations, and 
     prohibitions accompanying the State's delegation of that 
     power.
       5. In the case of airport construction, the Illinois 
     General Assembly has enacted a statute that delegated to 
     Chicago (and other municipalities) the state law power to 
     construct airports explicitly and specifically subject to 
     certain limits and conditions that the General Assembly 
     imposed. One basic requirement is that Chicago must first 
     comply with all of the requirements of the Illinois 
     Aeronautics Act--including the requirement that Chicago first 
     receive a permit (a certificate of approval) from the State 
     of Illinois. The Illinois General Assembly has expressly 
     provided that municipal construction or alteration of an 
     airport without such a state permit is unlawful and ultra 
     vires.
       6. Section 3(a)(3) of the Durbin-Lipinski legislation 
     expressly authorizes Chicago to proceed with the ``runway 
     redesign plan'' (a multi-billion dollar modification of 
     O'Hare) without regard to the clear delegation limitations 
     and prohibitions imposed by the Illinois General Assembly on 
     the state statutory delegation to Chicago of the state law 
     power to construct airports. Illinois law explicitly says 
     Chicago has no state law authority to build or alter airports 
     without first complying with the Illinois Aeronautics Act, 
     including the state permitting requirements of Sec. 47 of 
     that Act. Even though Chicago (a political creation and 
     instrumentality of the State of Illinois) has no power to 
     build or modify airports (a state law power) unless Chicago 
     obtains State approval, Section 3(a)(3) purports to infuse 
     Chicago (which has no legal existence independent of state 
     law) with a federal power to build airports and to disregard 
     Chicago's fundamental lack of power under state law to 
     undertake such actions (absent compliance with state law). 
     Like New York v. United States and Printz v. United States 
     the proposed Durbin-Lipinski legislation involves Congress 
     attempting to use a legal instrumentality of a State (i.e., 
     the state power to build airports exercised through its 
     delegated state-created instrumentality, the city of Chicago) 
     as an instrument of federal power. As the Supreme Court held 
     in New York and Printz, the Tenth Amendment--and the 
     structure of ``dual sovereignty'' it represents under our 
     constitutional structure of federalism--prohibits the federal 
     government form using the Commerce power to conscript state 
     instrumentalities as its agents.
       7. Similar problems articulated in New York and Printz 
     fatally afflict Section 3(f) of the proposed Durbin-Lipinski 
     legislation. That section provides that, if (for whatever 
     reason) construction of the ``runway design plan'' is not 
     underway by July 1, 2004, then the FAA Administrator (a 
     federal agency) shall construct the ``runway redesign plan'' 
     as a ``Federal Project''. But, Section 3(f)(1) then provides 
     that this ``federal project'' must obtain several agreements 
     and undertakings form Chicago--agreements and undertakings 
     that are controlled by state law, which limits Chicago's 
     authority to enter into such agreements or accept such 
     undertakings. Chicago has no authority under the state law 
     (which confers upon Chicago the state power to construct 
     airports) to enter into agreements with any third party (be 
     it the United States or a private party) to make alterations 
     of an airport without the state permit required by state 
     statute. Thus, Chicago has no authority under state law to 
     enter into an agreement with the FAA Administrator to have 
     the runway redesign plan constructed by the federal 
     government because Chicago has not received approval from the 
     State of Illinois under the Illinois Aeronautics Act--a 
     specific condition and prohibition of the delegation of state 
     power (to build airports) to Chicago by the Illinois General 
     Assembly. Just as Chicago (a creation and instrumentality of 
     the State of Illinois) has no power or authority under state 
     law (absent compliance with the Illinois Aeronautics Act) to 
     enter into an agreement for the FAA to construct the runway 
     redesign plan, Chicago also has no power or authority (absent 
     compliance with the Illinois Aeronautics Act) to enter into 
     the other agreements provided for in Section 3(f)(1)(B) of 
     the Durbin-Lipinski legislation. Again, Section 3(f) is an 
     attempt to have Congress use the Commerce power to conscript 
     state instrumentalities as its agents. Instead of Congress 
     regulating interstate commerce directly (which both New York 
     v. United States and Printz allow), the Durbin-Lipinski 
     legislation seeks to regulate how the State regulates one of 
     its cities (which both New York v. United States and Printz 
     do not allow).
       8. The Durbin-Lipinski legislation is a law of ``general 
     application''. There is a line of Supreme Court decisions 
     which allow Congress to use the Commerce Power to impose 
     obligations on the states when the obligations imposed on the 
     States are part of laws which are ``generally applicable'' 
     i.e., that impose obligations on the States and on private 
     parties alike. See e.g., Reno v. Condon, 528 U.S. 141 (2000) 
     (federal rule protecting privacy of drivers' records upheld 
     because they do not apply solely to the State); South 
     Carolina v. Baker, 485 U.S. 505 (1988) (state bond interest 
     not immune from nondiscriminatory federal income tax); Garcia 
     v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 
     (1985) (law of general applicability, binding on States and 
     private parties, upheld). But these cases have no application 
     where, as here and in New York and Printz, the Congressional 
     statute is not one of general application but is specifically 
     directed at the States to use state law instrumentalities as 
     tools to implement federal policy. Here the Durbin-Lipinski 
     legislation is doubly unconstitutional, because it does not 
     apply to private parties or even to all States but only to 
     one State (Illinois) and its relationship to one city 
     (Chicago). The Durbin-Lipinski legislation proposes to use 
     Chicago (an instrumentality of state power whose authority to 
     construct airports is an exercise of state power expressly 
     limited and conditioned on the limits and prohibitions 
     imposed on that delegation by the Illinois legislature) as a 
     federal instrumentality to implement federal policy. Congress 
     is commandeering a state instrumentality of a single State 
     (Illinois) against the express statutory will of the Illinois 
     Legislature, which has refused to confer on Chicago (an 
     instrumentality of the State) the state law power and 
     authority to build airports unless Chicago first obtains a 
     permit from the State of Illinois. This is an 
     unconstitutional use of the Commerce Power under the holdings 
     New York and Printz and does not fall within the ``general 
     applicability'' line of cases such as Reno v. Condon, South 
     Carolina v. Baker, and Garcia.


                                analysis

       Before discussing any further the specific provisions of 
     the Durbin-Lipinski legislation, let us review some important 
     background law.
     A. The Basic Legal Principles.
       Cities are Creatures of the States and State Law--Not 
     Instrumentalities of Federal

[[Page 12871]]

     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 citizen and creditors. 
     [Citations omitted.] It would be unnecessary and unprofitable 
     to analyze these decisions or quote from the opinions 
     rendered. We think the following principles have been 
     established by them and have become settled doctrines of this 
     court, to be acted upon wherever they are applicable. 
     Municipal corporations are political subdivisions of the 
     state, created as convenient agencies for exercising such of 
     the governmental powers of the state as may be [e]ntrusted to 
     them. . . . The number, nature, and duration of the powers 
     conferred upon these corporations and the territory over 
     which they shall be exercised rests in the absolute 
     discretion of the state. . . . The state, therefore, at its 
     pleasure, may modify or withdraw all such powers, may take 
     without compensation such property, hold it itself, or vest 
     it in other agencies, expand or contract the territorial 
     area, unite the whole or a part of it with another 
     municipality, repeal the charter and destroy the corporation. 
     All this may be done, conditionally or unconditionally, with 
     or without the consent of the citizens, or even against their 
     protest. In all these respects the state is supreme, and its 
     legislative body, conforming its action to the state 
     Constitution, may do as it will unrestrained by any provision 
     of the Constitution of the United States.
       Hunter held that a State that simply takes the property of 
     municipalities without their consent and without just 
     compensation did not violate due process. While Hunter is an 
     old case, it still is the law, and the Seventh Circuit 
     recently quoted with approval the language reprinted here.
       The Illinois Aeronautics Act Expressly Limits Chicago's 
     Power to Build and Alter. The State of Illinois has delegated 
     to Chicago the power to build and alter airports. But that 
     power is expressly limited by the requirement that Chicago 
     must comply with the Illinois Aeronautics Act. And the 
     Illinois Aeronautics Act provides that Chicago has no power 
     to make ``any alteration'' to an airport unless it first 
     obtains a permit, a ``certificate of approval,'' from the 
     State of Illinois. Finally, Chicago has not obtained this 
     certificate of approval. That fact is what has led to the 
     proposed federal intervention.
     B. The Federation Problem
       As mentioned above, section 3(a)(3) of the proposed federal 
     law overrides the licensing requirements of Sec. 47 of the 
     Illinois Aeronautics Act. This section states:
       (3) The State shall not enact or enforce any law respecting 
     aeronautics that interferes with, or has the effect of 
     interfering with, implementation of Federal policy with 
     respect to the runway redesign plan including sections 38.01, 
     47, and 48 of the Illinois Aeronautics Act.
       In addition, section 3(f) authorizes Chicago to enter into 
     an agreement with the federal government to construct the 
     O'Hare Airport expansion. This project is called a ``Federal 
     project,'' but Chicago must agree to construct the ``runway 
     redesign as a Federal Project,'' and Chicago provides the 
     necessary land, easements, etc., ``without cost to the United 
     States.''
       What this proposed legislation does is authorize the City 
     of Chicago to implement an airport expansion approved by the 
     Administrator of the Federal Aviation Administration. But, 
     under state law, Chicago cannot expand O'Hare because it does 
     not have the required state permit.
       There is no doubt that the O'Hare Airport is a means of 
     interstate commerce, and Congress may certainly impose 
     various rules and regulations on airports, including O'Hare. 
     Congress, for example, may decide to require airport security 
     and require that the security agents be federal employees. 
     Or, Congress could provide that it would build and takeover 
     the O'Hare Airport and construct expansion if the State of 
     Illinois refused to do so.
       Congress may also use its spending power to take land by 
     eminent domain and then construct or expand an airport, no 
     matter what the state law provides. The limits on the 
     spending clause are few.
       But, the proposed law does not take such alternatives. It 
     does not impose regulations on airports in general, nor does 
     it exercise the very broad federal spending power. Nor does 
     the proposed law authorize the federal government take over 
     ownership and control of O'Hare Airport. Instead, it seeks to 
     use an instrumentally of state power (i.e., the state law 
     power to build airports as delegated to a state 
     instrumentality, the city of Chicago) as an exercise of 
     federal power.
       The proposed federal law is stating that it is creating a 
     federal authorization or empowerment to the City of Chicago 
     to do that which state law provides that Chicago may not do--
     expand O'Hare Airport without comply with state laws that 
     create the City of Chicago and delegate to it certain limited 
     powers that can be exercised only if within the limits of the 
     authorizing state legislation.
       New York v. United States. The proposed federal law is very 
     similar to the law that the Supreme Court invalidated a 
     decade ago in New York v. United States. The law that New 
     York invalidated singled out states for special legislation 
     and regulated the states' regulation of interstate commerce. 
     The proposed Durbin-Lipinski legislation singles out a State 
     (Illinois) for special legislation and regulates that State's 
     regulation of interstate commerce dealing with O'Hare 
     Airport.
       While the law in this area has shifted a bit over the last 
     few decades, it is now clear that Congress can use the 
     Interstate Commerce Clause to impose various burdens on 
     States as long as those laws are ``generally applicable.'' 
     The federal law may not single out the state for special 
     burdens. For example, Congress may impose a minimum wage on 
     state employees in, or affecting, interstate commerce as long 
     as Congress imposes the same minimum wage requirements on 
     non-state workers in, or affecting, interstate commerce. 
     Congress can regulate the States using the Commerce Clause if 
     it imposes requirements on the States that are generally 
     applicable--that is, if it imposes the same burdens on 
     private employers. Congress cannot single out the States for 
     special burdens; it cannot commandeer or take control over 
     the states or order a state legislature to increase the home 
     rule powers of the City of Chicago; it cannot enact federal 
     legislation that adds to or revises Chicago's state created 
     and limited delegated powers.
       The leading case, New York v. United States, held that the 
     Commerce Clause does to authorize the Federal Government to 
     conscript state governments as its agents. ``Where a federal 
     interest is sufficiently strong to cause Congress to 
     legislate, it must do so directly; it may not conscript state 
     governments as its agents. The proposed Durbin-Lipinski 
     legislation will do exactly what New York prohibits it will 
     conscript the City of Chicago as its agent and interfere with 
     the relationship between the State of Illinois and the entity 
     it created, the City of Chicago.
       New York invalidated a legislative provision that is 
     strikingly similar to the proposed federal Durbin-Lipinski 
     legislation. The Court, in the New York case, considered the 
     Low-Level Radioactive Waste Policy Amendments Act of 1985. 
     Congress was concerned with a shortage of disposal sites for 
     low level radioactive waste. The transfer of waste from one 
     State to another is obviously interstate commerce. Congress, 
     in order to deal with the waste disposal problem, crafted a 
     complex statute with three parts, only one of which was 
     unconstitutional. There were a series of monetary incentives, 
     which the Court unanimously upheld under Congress' broad 
     spending powers. Congress also authorized States that adopted 
     radioactive waste and storage disposal guidelines to bar 
     waste imported from States that had not adopted certain 
     storage and disposal programs. The Court, again unanimously, 
     relied on long-settled precedent that approves of Congress 
     creating such trade barriers in interstate commerce.
       Then the Court turned to the ``take title'' provisions and 
     held (six to three) that they were unconstitutional. The 
     ``take title'' provision in effect required a State to enact 
     certain regulations and, if the State did not do so, it must 
     (upon the request of the waste's generator or owner), take 
     title to and possession of the waste and become liable for 
     all damage suffered by the generator or owner as a result of 
     the State's failure to promptly take possession.
       The Court explained that Congress could, if it wished, 
     preempt entirely state regulation in this area and take over 
     the radioactive waste problem. But Congress could not order 
     the States to change their regulations in this area. Congress 
     lacks the power, under the Constitution, to regulate the 
     State's regulation of interstate commerce. That is what the 
     proposed federal O-Hare Airport bill will do: it will 
     regulate the State's regulation of interstate commerce by 
     telling the State that it must act as if the City of Chicago 
     has complied with the Illinois Aeronautics Act and other 
     state rules.
       In a nutshell, Congress cannot constitutionally commander 
     the legislative or executive branches. The Court pointed out 
     that this commandeering is not only unconstitutional (because 
     nothing in our Constitution authorizes it) but also bad 
     policy, because federal commandeering serves to muddy 
     responsibility, undermine political accountability, and 
     increase federal power.
       The proposed Durbin-Lipinski legislation prohibits Illinois 
     from applying its laws regulating one of its cities. The 
     proposed federal law also authorizes the federal government 
     to make an agreement with Chicago, pursuant to which Chicago 
     will assume some significant obligations, even though present 
     state law gives Chicago no authority to engage in this 
     activity. As the six to three New York decision made clear:

[[Page 12872]]

       A State may not decline to administer the federal program. 
     No matter which path the State chooses, it must follow the 
     direction of Congress. . . . No other federal statute has 
     been cited which offers a state government no option other 
     than that of implementing legislation enacted by Congress. 
     Whether one views the take this provision as lying outside 
     Congress' enumerated powers, or as infringing upon the core 
     of state sovereignty reserved by the Tenth Amendment, the 
     provision is inconsistent with the Federal structure of our 
     Government established by the Constitution.
       The proposed Durbin-Lipinski legislation is very much like 
     the law that six justices invalidated in New York. The O'Hare 
     bill provides that, no matter what the State chooses, ``it 
     must follow the direction of Congress.'' The State has ``no 
     option other 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 legislate and executive branches of 
     the States to implement federal policies. Because such 
     federal legislative activity is recent, the case law in this 
     area is recent, but the case law is clear in prohibiting this 
     type of federal assertion of power.
       New York v. United States held that Congress cannot 
     ``command a State government to enact state regulation.'' 
     Congress may regulate interstate commerce directly, but it 
     may not ``regulate state governments' regulation of 
     interstate commerce.'' The Federal Government may not 
     ``conscript state governments as its agents.'' Congress has 
     the ``power to regulate individuals, not States.''
       In short, there are important limits on the power of the 
     federal government to commandeer the state legislature or 
     state executive branch officials for federal purposes. 
     Another way to think about this issue, is that, to a certain 
     extent, the Constitution forbids Congress from imposing what 
     recently have been called ``unfunded mandates'' on state 
     officials. Congress cannot simply order the States or state 
     officials or a city to take care of a problem. Congress can 
     use its spending power to persuade the States by using the 
     carrot instead of the stick.
       While there are those who have attacked the restrictions 
     that New York v. United States have imposed on the Federal 
     Government, it is worth remembering the line-up of the Court 
     in Maryland v. Wirtz when the justices first considered this 
     issue. That case rejected the applicability of the Tenth 
     Amendment and held that it was constitutional for Congress to 
     set the wages, hours, and working conditions of employees, 
     including state employees in interstate commerce. However, 
     Justice Douglas, who was joined by Justice Stewart, 
     dissented. Douglas found the law to be a ``serious invasion 
     of state sovereignty protected by the Tenth Amendment'' and 
     ``not consistent with our constitutional federalism.'' He 
     objected that Congress, using the broad commerce power, could 
     ``virtually draw up each State's budget to avoid `disruptive 
     effect[s]''' on interstate commerce. New York v. United 
     States prevents this result.
       The ``generally applicable'' restriction is important, and 
     it explains Reno v. Condon. Congress enacted the Driver's 
     Privacy Protection Act (DPPA), which limited the ability of 
     the States to sell or disclose a driver's personal 
     information to third parties without the driver's consent. 
     Chief Justice Rehnquist, for a unanimous Court, upheld the 
     law as a proper regulation of interstate commerce and not 
     violating any principles of federalism found in New York v. 
     United States or Printz because the law was ``generally 
     applicable.''
       Reno grew out of a congressional effort to protect the 
     privacy of drivers' records. As a condition of obtaining a 
     driver's license or registering a car, many States require 
     drivers to provide personal information, such as name, 
     address, social security number, medical information, and a 
     photograph. Some States then sell this personal information 
     to businesses and individuals, generating significant 
     revenue. To limit such sales, Congress enacted the DPPA, 
     which governs any state department of motor vehicles (DMV), 
     or state officer, employee, or contractor thereof, and any 
     resale or re-disclosure of drivers' personal information by 
     private persons who obtain the information from a state DMV. 
     The Court concluded: ``The DPPA's provisions do not apply 
     solely to States.'' Private parties also could not buy the 
     information for certain prohibited purposes nor could they 
     resell the information to other parties for prohibited 
     purposes, and the States could not sell the information to 
     the private parties for certain purposes if the private 
     parties could not buy it for those purposes.
       Unlike the law in New York, the Court concluded that the 
     DPPA does not control or regulate the manner in which States 
     regulate private parties, it does not require the States to 
     regulate their own citizens, and it does not require the 
     state legislatures to enact any laws or regulations. Unlike 
     the law in Printz, the DPPA does not require state officials 
     to assist in enforcing federal statutes regulating private 
     individuals. This DMV information is an article of commerce 
     and its sale or release into the interstate stream of 
     business is sufficient to support federal regulation.
       The DPPA is a ``generally applicable'' federal law 
     regulating commerce because it regulates the universe of 
     entities that participate as suppliers to the market for 
     motor vehicle information--the states as initial suppliers 
     and the private resellers or redisclosers of this 
     information. ``South Carolina has not asserted that it does 
     not participate in the interstate market for personal 
     information. Rather, South Carolina asks that the DPPA be 
     invalidated in its entirely, even as applied to the States 
     acting purely as commercial sellers.''


                               conclusion

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

[[Page 12873]]

     case law is clear that Congress does not have the power.
           Sincerely,
                                                Ronald D. Rotunda,
     The Albert E. Jenner, Jr. Professor of Law.
                                  ____

  Mr. KIRK. Mr. Speaker, I yield 1\1/2\ minutes to the distinguished 
gentleman from Illinois (Mr. Manzullo), the chairman of the Committee 
on Small Business, another bipartisan supporter of this legislation.
  Mr. MANZULLO. Mr. Speaker, I rise in support of H.R. 3479, the 
National Aviation Capacity Expansion Act. I want to thank the gentlemen 
from Illinois (Mr. Kirk) and (Mr. Lipinski) and other members of the 
Illinois delegation and the surrounding region for their hard work in 
coming to an agreement on this legislation.
  O'Hare serves as the main hub for the Nation's two largest commercial 
airlines, and expansion is without a doubt going to be a tremendous 
benefit to travelers and businesses in the northern Illinois area, as 
well as the Nation.
  What I particularly appreciate about this legislation is that it 
acknowledges the role of other regional airports, especially the 
Greater Rockford Airport, and the role it can have in helping to 
alleviate congestion at O'Hare. This legislation clearly states how 
important it is for the FAA to consider existing infrastructure when 
constructing a plan to streamline traffic through O'Hare. With a runway 
that can land virtually any jet today at a distance of only 1 hour's 
drive from Chicago, Rockford Airport stands ready to immediately 
supplement traffic congestion at O'Hare during construction or in the 
future.
  The efficiency of our Nation's air travel is ready for a dramatic 
upgrade in the Chicago area, and this bill is a critical step in 
addressing that need. I urge my colleagues to support its passage 
today.
  Mr. LIPINSKI. Mr. Speaker, I yield 1\1/2\ minutes to the gentleman 
from Indiana (Mr. Visclosky).
  Mr. VISCLOSKY. Mr. Speaker, I appreciate the gentleman yielding me 
this time.
  Mr. Speaker, I rise today in support of H.R. 3479, the National 
Aviation Capacity Expansion Act.
  First, I am a supporter of increased airport capacity for the Chicago 
metropolitan area, and I commend the gentleman from Illinois (Mr. 
Lipinski) and the leadership of the Committee on Transportation and 
Infrastructure for achieving this equitable regional solution that will 
help relieve air congestion in our Nation and the Chicago region.
  Second, increasing air capacity in the Chicago metropolitan area is a 
national concern and not just a Chicago or an Illinois problem. Air 
congestion is also a regional problem and it demands a regional answer. 
I happen to believe that the Gary/Chicago Airport has a role in helping 
solve the air traffic congestion problems facing the region and Nation. 
H.R. 3479 provides full consideration for expansion and improvement 
projects at the Gary/Chicago Airport.
  I have worked in this body for my entire career to modernize and 
improve the Gary/Chicago Airport. It can play an increasingly valuable 
role in delivering passenger and cargo service to the area. Last year, 
the FAA approved the Gary/Chicago Airport's 20-year master plan. The 
master plan outlines the airport's existing facilities and ability to 
handle air traffic growth and economic forecasts.
  Mr. Speaker, H.R. 3479 would guarantee that the Gary/Chicago Airport 
would be considered for growth and needed improvements, which will 
enhance its role as the Chicago airport.
  Mr. JACKSON of Illinois. Mr. Speaker, I am proud to yield 6 minutes 
to the distinguished gentleman from Illinois (Mr. Weller).
  Mr. WELLER. Mr. Speaker, it is interesting what we have before us 
today. Usually Suspension Calendar legislation is noncontroversial; but 
today we have a proposal which most people say only affects Illinois, 
so most Members may not be paying attention to it. But I think it is 
important to note that this legislation splits the Illinois delegation 
right down the middle.
  I stand in opposition to this legislation, and I also urge my 
colleagues to vote against this legislation with the hope that it is 
defeated and that the Committee on Transportation and Infrastructure 
will revisit this legislation and produce legislation that truly 
recognizes the bipartisan agreement between Mayor Daley and Governor 
Ryan.
  I support O'Hare expansion, and I support a third airport at Peotone. 
As we all know, air travel will double in the coming decade. O'Hare and 
Midway Airports are at capacity. We need to rebuild and modernize 
O'Hare, and we need to build the South Suburban Airport near Peotone.
  Governor Ryan and Mayor Daley entered into a historic agreement last 
year which would provide for the reconfiguration and expansion of 
Chicago O'Hare and the development of the Chicago South Suburban 
Airport located near Peotone, Illinois. The gentleman from Illinois 
(Mr. Lipinski) introduced legislation which would originally have 
codified this agreement into law, modernizing O'Hare and pushing 
development of a south suburban airport. I had originally hoped to 
cosponsor and support this legislation, if it truly reflected the 
integrity of the agreement between the Governor and the mayor.
  However, I would note that that is not the bill that is before us 
today. It is also important to note that the Governor of Illinois does 
not support this bill in its current form. In fact, Mr. Speaker, the 
bill that is before us today is only a fragment of the original 
legislation and represents none of the compromise that was reached 
between the Governor and the mayor. Rather, the legislation that is 
proposed before us today is an attempt to force the Congress to take an 
unprecedented step in mandating that Chicago O'Hare be rebuilt, as the 
mayor demanded, while completely ignoring the Governor's side of the 
agreement, the Governor's side of the agreement that a south suburban 
airport should also be built. As such, the Governor of Illinois, as I 
noted earlier, does not support this bill in its current form and as it 
is currently written.

                              {time}  1630

  We ask that language moving for the construction of a south suburban 
third airport be added to this legislation.
  This legislation breaks the agreement of the mayor and the Governor, 
as I have noted here in my chart. There is nothing in this legislation 
that reflects the agreement to promote the development of a south 
suburban airport.
  This legislation takes away Illinois State's rights, and it undercuts 
the authority of the State of Illinois to make its own decisions 
regarding air travel. The legislation completely ignores the needs of 
the south suburbs of Chicago, where 2.5 million Illinois residents live 
within 45 minutes of the proposed airport site.
  Additionally, I would note that failure to develop Peotone will 
shortchange the entire Chicago region by forfeiting almost 250,000 new 
jobs.
  Unfortunately, H.R. 3479 does not pay heed to the studies that since 
the 1980s have consistently shown that Chicago, our region, and the 
Nation will have aviation gridlock in the near future, and that the 
best solution is a south suburban third airport. The Governor and mayor 
recognized these studies when they reached their agreement this past 
year.
  Nevertheless, the bill imposes a Federal solution on a State problem 
and does not have the full support of the entire delegation, nor the 
people of Illinois, who are most impacted. In fact, the four Members of 
the Illinois delegation most impacted in their own districts by H.R. 
3479 stand in opposition today, the gentlemen from Illinois, Mr. Crane, 
Mr. Hyde, Mr. Jackson, and myself.
  Mr. Speaker, I support Chicago O'Hare, and I believe that it needs to 
be expanded and modernized to be a safer airport with more capacity; 
but expanding O'Hare alone will not solve the capacity needs of the 
future. Even with the development of a south suburban airport, O'Hare 
could still expect a 40 percent increase in passenger load. Air travel 
is expected to double in the next 10 to 15 years.

[[Page 12874]]

  Expanding O'Hare will take 12 to 15 years, and we cannot land an 
airplane while we are pouring concrete. The South Suburban Airport at 
Peotone could be expanding capacity and up and running in 4 to 5 years 
as a complement to O'Hare expansion. However, this legislation stifles 
any development of the South Suburban Airport and keeps Chicago 
aviation gridlocked for the next decade.
  Aviation is a key part of our economy for Chicago and our Nation. We 
must expand our capacity to accommodate the growth in aviation by 
building a third airport in Chicago's south suburbs, as well as 
expanding O'Hare. H.R. 3479 fails this goal and should be defeated.
  I urge my colleagues to join me by voting ``no'' and asking the 
Committee on Transportation and Infrastructure to produce a bill that 
reflects the historic agreement between Mayor Daley and Governor Ryan, 
working towards building a south suburban third airport as well as 
expansion of O'Hare.
  Again, the legislation before us today breaks the bipartisan 
agreement between Governor Ryan and Mayor Daley. I ask for a ``no'' 
vote.
  Mr. LIPINSKI. Mr. Speaker, I yield 6 minutes to the gentleman from 
Minnesota (Mr. Oberstar), the ranking member of the Committee on 
Transportation and Infrastructure, and the former chairman of the 
Subcommittee on Aviation.
  Mr. OBERSTAR. Mr. Speaker, I thank the gentleman for yielding such an 
abundance of time to me. I especially want to compliment the gentleman 
from Illinois (Mr. Lipinski) for the hours and weeks of time he has 
personally dedicated to mediating between the City of Chicago and the 
State of Illinois, and working to bring us the legislation that is 
before the House today.
  Mr. Speaker, when President John F. Kennedy dedicated O'Hare Airport 
in 1963, he said, ``There is no other airport in the world that serves 
so many people and so many airplanes. This is an extraordinary airport. 
It could be classed as one of the wonders of the world.''
  Mr. Speaker, the pulse of national and international air travel 
remains dependent on O'Hare today, as it did when opened in 1963; but 
few would suggest that today it is that wonder of the world. It is 
simply failing to meet the capacity demands put on this airport by the 
extraordinary increase in air travel throughout world, as well as 
throughout our own Nation.
  Delays at O'Hare ricochet around the world. They reverberate as far 
away as Frankfurt, Germany; London's Heathrow Airport; Tokyo's Narita 
Airport; and elsewhere around the United States. A weather delay in 
Chicago means business travelers inbound from the European continent or 
the Pacific Rim are delayed, either at their point of origin or en 
route.
  This airport is truly an extraordinary facility in the world of 
aviation. It is our Nation's premier airport. It is the crown jewel of 
aviation in the United States, but it cannot continue to serve that 
role in its current configuration.
  When I met with the mayor and the staff, the professional staff of 
the O'Hare International Airport operation over 1\1/2\ years ago to 
discuss their plans for expansion, I was greatly impressed with the 
proposals for reconfiguring this airport that would result in a 4,300-
foot separation between two groups of parallel runways, the addition of 
an entirely new runway, and for operational improvements that would 
reduce reductions in operations by 95 percent in bad weather, and 
overall reduce delays by almost 80 percent.
  That is an extraordinary improvement in aviation service and will 
result in untold benefits, benefits we can only estimate today, but 
that will run into the billions of dollars over the years and more than 
justify the cost of the investments needed to make these improvements.
  There has been a good deal of discussion throughout the proposal when 
it was first surfaced over a year ago about whose responsibility it is 
to build this airport and what should be the role of the State. There 
has been, let us be candid about it, a great deal of conflict between 
the city and the State, not only on O'Hare Airport, but on, as Mayor 
Daley testified at our committee hearings, on such matters as transit 
improvements, on highway improvements, where the State repeatedly has 
vetoed City of Chicago plans to expand, improve, and deal with its 
infrastructure needs.
  The gentleman from Illinois, working with the city and the State, 
attempted to resolve the complexities through the channeling process, 
whereby the city must channel its request for FAA approval through the 
State of Illinois; but over time, contrary to best hopes and 
expectations, that proved to be very difficult.
  The city and the State came up with a plan that initially I found to 
be unacceptable because it would be violative of national aviation 
policy. Over months of negotiations, the two parties, the State and the 
city, have come to an agreement. The gentleman from Illinois (Mr. 
Lipinski), our ranking member on the Subcommittee on Aviation, served 
as a midwife and attending physician, caregiver and nurturer of all 
good things. I think it has really come to fruition here.
  The National Aviation Capacity Expansion Act, H.R. 3479, will 
facilitate projects to enhance capacity in the Chicago area, including 
major expansion of Chicago O'Hare Airport, our Nation's second-busiest 
airport and the third-most delayed. As I noted previously, the City of 
Chicago, which runs the airport, has proposed development that it 
estimates will improve O'Hare's operations in optimal conditions by 79 
percent and in less-than-optimal conditions by 95 percent, while making 
quantum leaps in O'Hare annual capacity. The proposal, which involves 
one new runway and reconfiguration of the seven existing runways, is 
predicted to more than double O'Hare's annual enplanements, from 31 
million to 76 million, and to allow the airport to handle 1.6 million 
annual operations, compared with the current level of less than 1 
million.
  Under this legislation, the State of Illinois will be preempted from 
using unique provisions of state law to prevent the Federal Aviation 
Administration (FAA) from even considering the expansion and 
reconfiguration of O'Hare airport. The preemption provision is narrowly 
crafted to preempt the unique provisions of the Illinois Aeronautics 
Act, which for years have been used to delay any consideration of 
expanding O'Hare.
  When H.R. 3479 was introduced, I was extremely concerned with the 
provisions that crafted preferences or exemptions for the O'Hare and 
Peotone projects from: (1) the federal and state National Environmental 
Policy Act (NEPA) processes, (2) the Clean Air Act, (3) and the need to 
compete with other airports, on a merit basis, for the limited Airport 
Improvement Program (AIP) funding available.
  The Transportation and Infrastructure Committee, however, accepted an 
amendment offered by Mr. Lipinski that makes it clear that O'Hare-
related projects will not receive any preference in seeking funds from 
the Airport Improvement Program. The amendment only allows the City of 
Chicago to submit to the FAA a request for AIP funds for the planning 
and construction of O'Hare airport, without the prior approval of the 
State of Illinois. FAA will use its best professional judgment to 
determine whether the projects should be funded under the criteria used 
to evaluate applications for AIP grants.
  The bill makes it clear that any application submitted by the City of 
Chicago for the expansion of O'Hare must be evaluated under all 
applicable federal laws and regulations, including the federal NEPA 
process. In addition, it requires that proposals for the construction 
or expansion of Peotone, Gary/Chicago, and Greater Rockford airports 
should be evaluated on the same basis as any other airport project.
  The bill also addresses my main concern with the Clean Air Act 
provision in the introduced bill. I believed that under the introduced 
bill, the people of Illinois would lose the right to decide which 
emissions should be curtailed to meet the Clean Air Act's requirements.

[[Page 12875]]

The reported bill requires the State to follow its usual and customary 
practices for accounting for, and regulating emissions associated with, 
airport activities. The bill prevents the State from deviating from 
customary practices to interfere with construction of a runway at 
O'Hare airport or the south suburban airport. The FAA can request a 
review by the Federal Environmental Protection Agency to ensure that 
the State has followed its customary practices. The bill also prohibits 
the FAA from approving the O'Hare runway design plan unless FAA 
determines that the construction and the operations at the airport will 
include best management practices to mitigate emissions.
  In sum, the National Aviation Capacity Expansion Act of 2002 ensures 
that the uniqure provisions of Illinois law will not stand in the way 
of the O'Hare redesign project, while at the same time, O'Hare will not 
have unfair advantage in competing for scare AIP funds; and 
environmental laws will not be short-circuited.
  Mr. LIPINSKI. Mr. Speaker, will the gentleman yield?
  Mr. OBERSTAR. I yield to the gentleman from Illinois.
  Mr. LIPINSKI. Mr. Speaker, I would just like to speak on one point. 
It has been mentioned here on the floor that the Governor is not in 
favor of this legislation. I spoke to the Governor Friday afternoon, 
and he is still in favor of this legislation.
  Now, if he changed his mind over the weekend, I cannot attest to 
that; but as of last Friday, he was in favor of this particular piece 
of legislation. I have read nothing in the newspaper, saw nothing on 
television, or heard nothing on the radio that he has changed his 
position.
  Mr. OBERSTAR. I thank the gentleman for that addition. That has been 
our understanding on our side on a bipartisan basis, that the Governor 
is in support.
  Mr. Speaker, it is important to point out that cities were the first 
to champion airports; States came along much later.
  The SPEAKER pro tempore (Mr. Ryan of Wisconsin). The time of the 
gentleman from Illinois (Mr. Lipinski) has expired.
  Mr. JACKSON of Illinois. Mr. Speaker, I ask unanimous consent that 
the gentleman from Illinois may have 2 additional minutes for himself 
and 2 minutes to our side as well.
  The SPEAKER pro tempore. Is the gentleman from Illinois (Mr. Jackson) 
asking for equal distribution of minutes for each side?
  Mr. JACKSON of Illinois. Yes, 2 minutes for each side.
  Mr. LIPINSKI. Mr. Speaker, I would like to make that 5 minutes for 
each side.
  The SPEAKER pro tempore. Without objection, each side is distributed 
an additional 5 minutes.
  There was no objection.
  Mr. LIPINSKI. Mr. Speaker, the gentleman from Illinois (Mr. Kirk) 
will have an additional 5 minutes?
  The SPEAKER pro tempore. The gentleman from Illinois (Mr. Kirk) will 
have an additional 5 minutes, and the gentleman from Illinois (Mr. 
Jackson) will have an additional 5 minutes.
  Mr. KIRK. Mr. Speaker, I believe I have 8 minutes now available to 
me?
  The SPEAKER pro tempore. That is correct.
  Mr. KIRK. Mr. Speaker, I yield 5 minutes to the gentleman from 
Illinois (Mr. Lipinski) and ask unanimous consent that he control that 
time.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Illinois?
  There was no objection.
  Mr. LIPINSKI. Mr. Speaker, I yield 2 minutes to the gentleman from 
Minnesota (Mr. Oberstar).
  Mr. OBERSTAR. Mr. Speaker, I thank the gentleman from Illinois (Mr. 
Jackson) for his request and the gentleman from Illinois (Mr. Lipinski) 
for yielding that additional time to me.
  Mr. Speaker, in the early years of aviation, with cities that first 
built airports, only later did States come. As late as 1958, only seven 
States provided financial assistance and support for airport 
construction. It was in the 1940s, long before the State of Illinois 
ever got into the business of supporting airports, that the Chicago 
City Council looked into the crystal ball and saw that the future was 
aviation and had the foresight to buy orchard fields and an additional 
7,000 acres to build O'Hare.
  On the matter of constitutionality, I just want to point out, and I 
was concerned about this, we inquired with the John Paul Stephens 
professor of law at Northwestern University, Professor Thomas Merrill, 
to get his opinion on the constitutionality. His view is that ``the 
Illinois Aeronautics Act was not protected by the Tenth Amendment. The 
Illinois Aeronautics Act is unique. Regulation aviation capacity cannot 
be deemed a core or traditional State function that might be protected 
by the Tenth Amendment. This legislation does not require the State of 
Illinois to proactively regulate its citizens, it merely prohibits the 
State of Illinois from interfering with the city of Chicago's ability 
to expand capacity at O'Hare.''
  Mr. Speaker, I think that clearly this legislation is within the 
authority of the Congress. It is in the public interest. It is 
necessary to resolve a deadlock between the State of Illinois and the 
City of Chicago. It was requested by the State of Illinois. It was 
sought by the City of Chicago, which has the primary responsibility for 
airport construction, and has nurtured O'Hare Airport into the world's 
premier facility that it is and represents today.
  We are talking here not just about this airport, but we are talking 
about service to the entire Nation, facilitating air service to smaller 
communities as well as large communities, and service to the world.
  Mr. JACKSON of Illinois. Mr. Speaker, I am proud to yield 2\1/2\ 
minutes to the distinguished gentleman from Illinois (Mr. Crane).
  Mr. CRANE. Mr. Speaker, I rise today in strong opposition to the so-
called National Aviation Capacity Expansion Act of 2002. If enacted 
into law, this measure would not accomplish the goal that most 
Americans have in mind, namely, a reduction in air traffic congestion 
as quickly and cheaply as it can be accomplished. To the contrary, it 
would mean years of waiting for relief, expenditures far in excess of 
those associated with other more effective alternatives, and the 
establishment of a troublesome precedent that could come back to haunt 
other airports around the Nation in the future.
  This legislation mandates the addition of one runway at Chicago's 
O'Hare Airport and the reconfiguration of O'Hare's existing runways, 
State law, local objections, noise problems, pollution threats, cost 
considerations, condemnation proceedings, safety concerns, ongoing 
litigation, and the fate of two cemeteries notwithstanding.
  Worse yet, the measure, the total cost of which is likely to far 
exceed the $6.6 billion price tag, in fact, it has been estimated to be 
more in the neighborhood of 12 billion to $15 billion that has been 
associated with it, conveniently overlooks the fact that there are at 
least three other ways, such as making greater use of the greater 
Rockford Airport, which has a runway of over 10,000 feet, the second 
largest runway in the State, and it can relieve O'Hare's air traffic 
congestion problems almost immediately.
  Not only that, but all of these alternatives can be implemented less 
expensively and/or more quickly than the ill-conceived plan to expand 
O'Hare.

                              {time}  1645

  Furthermore, this legislation poses a threat to people who live near 
many other airports in this country because it will set a precedent for 
Federal government preemption of State and/or local laws governing 
airport planning and development.
  Mr. Speaker, I urge my colleagues to vote against H.R. 3479. It is a 
prescription for mischief that bodes ill, not just for the residents of 
Chicago's northwest suburbs, but for millions of other Americans as 
well.
  Mr. JACKSON of Illinois. Mr. Speaker, how much time do I have 
remaining?
  The SPEAKER pro tempore (Mr. Ryan of Wisconsin). The gentleman from 
Illinois (Mr. Jackson) has 7 minutes remaining.

[[Page 12876]]

  Mr. JACKSON of Illinois. Mr. Speaker, I yield myself 2\1/2\ minutes.
  Mr. Speaker, we have heard some arguments about the constitutionality 
of this act, this unprecedented act of Congress. But in New York v. The 
United States, the Supreme Court was really clear. The Framers, they 
said, explicitly chose a Constitution that confers upon Congress the 
power to regulate individuals, not States. We have always understood 
that even where Congress has the authority under the Constitution to 
pass laws requiring or prohibiting certain acts, it lacks the power to 
directly compel the States to prohibit those acts, New York v. The 
United States.
  Printz v. The United States: It is uncontestable that the 
Constitution established a system of ``dual sovereignty.'' And 
Federalist No. 39: Although the States surrendered many of their powers 
to the new Federal Government, they retained ``a residuary and 
inviolable sovereignty,'' Federalist No. 39.
  Mr. Speaker, that brings us to, from my perspective, the Printz 
decision. You heard some of the economic arguments about 47 States 
going through O'Hare Airport and the implications of that. This is 
about process and it is about doing it right. In Printz, the court went 
on to emphasize that this constitutional structural barrier to the 
Congress intruding on a State's sovereignty could not be avoided by 
claiming, A, that the Congressional authority was pursuant to the 
Commerce Power. All of the economic arguments are irrelevant, according 
to Printz v. The United States; and, B, that the Federal law preempted 
the State law under the supremacy clause. Even the supremacy clause 
arguments of Congress are not unavailable. And last I checked, the 
majority on the current Supreme Court are the same majority that 
decided Printz. And unless they are willing to overturn Printz, this 
piece of legislation before us, Mr. Speaker, is unconstitutional, which 
raises the next point.
  Because this is likely heading to Federal court, we are not going to 
solve the national aviation capacity problem any time soon, which is 
why we need a faster, cheaper, safer solution of expanding aviation 
capacity for our Nation's aviation system. That can be accomplished, 
not with a 13 to $15 billion, 20-year project at O'Hare Airport; it is 
accomplishable by building a third airport in Peotone, Illinois, which 
my colleagues who have risen today aptly support.
  Mr. Speaker, I reserve the balance of my time.
  Mr. KIRK. Mr. Speaker, the majority will close.
  Mr. JACKSON of Illinois. Mr. Speaker, I yield such time as he may 
consume to the gentleman from Illinois (Mr. Hyde), the distinguished 
chairman of the Committee on International Relations.
  Mr. LIPINSKI. Mr. Speaker, how much time remains?
  The SPEAKER pro tempore. The gentleman from Illinois (Mr. Lipinski) 
has 4 minutes remaining, and the gentleman from Illinois (Mr. Kirk) has 
3 minutes remaining. The gentleman from Illinois (Mr. Jackson) has 5 
minutes remaining.
  Mr. HYDE. Mr. Speaker, I want to say that my disdain for this 
legislation is in reverse ratio to my admiration for the chief 
sponsors, the gentlemen from Illinois (Mr. Lipinski), (Mr. Kirk), who 
are splendid legislators. They are just wrong on this bill. So I want 
to make that clear.
  First of all, I just want to appeal to your common sense. I know this 
is a big deal. You want to add additional flights, nearly doubling 
already the busiest airport in the world. That is a big deal. We are 
talking about a lot of money. And when you talk about a lot of money, 
people's ears perk up. But we are also talking about so much space in 
the sky. You can keep condemning people's homes and their cemeteries 
and get bigger and bigger, and I do not understand why a Republican 
would put an imprimatur on transferring local authority; and this 
should be a local decision. When I say local, I do not mean the 
Governor. I mean the legislature, the people's body. That is what the 
Illinois Aeronautics Act says. We shred that and throw it away?
  The Illinois Aeronautics Act gives the legislature or expresses the 
will of the legislature on this issue; and that requires permission 
from the legislature to expand this airport. But you are just riding 
roughshod over that, saying if we cannot get that, we will go to 
Congress.
  Mr. LIPINSKI. Mr. Speaker, will the gentleman yield?
  Mr. HYDE. I yield to the gentleman from Illinois (Mr. Lipinski).
  Mr. LIPINSKI. Mr. Speaker, the gentleman refers to the State 
legislature in the Illinois Aeronautics Act. It is my understanding 
reading it and talking to other people about it that the Illinois 
legislature is not involved in the process at the present time. It is 
exclusively the Governor's office with its arbitrary veto power and 
then the Department of Transportation which he controls on the 
channeling acts. The legislature is not involved in the process at the 
present time.
  Mr. JACKSON of Illinois. Mr. Speaker, will the gentleman yield?
  Mr. HYDE. I yield to the gentleman from Illinois (Mr. Jackson).
  Mr. JACKSON of Illinois. Mr. Speaker, is it the gentleman's 
contention then that a governor who is essentially not running for 
reelection is under an obligation to enter into an agreement and, 
therefore, obligate this Congress and future governors to a piece of 
legislation that future governors cannot alter? Is that the gentleman's 
position?
  Mr. LIPINSKI. Mr. Speaker, I am saying my position is simply 
expressing to the gentleman from Illinois (Mr. Hyde) what my 
understanding is of the Aeronautics Act in the State of Illinois. The 
legislature is not involved.
  Mr. HYDE. Reclaiming my time, I would suggest if we are going to 
prolong this seminar on the law, that we do it on the gentleman's time.
  Mr. Speaker, I simply want to point out that there is only so much 
space in the sky. And when you already have the busiest airport, and 
busiest does not mean people walking into Starbucks. It means planes 
coming in and taking off.
  I sit in my living room in the evening and look out and I see them 
stretched all the way up to Wisconsin, plane, plane, plane, waiting to 
come in.
  Of course, there are delays. There will always be delays at O'Hare 
because we have terrible weather in the winter and the airlines 
schedule too many flights. That is what happens and that needs to be 
corrected. But to double the size of O'Hare, the flights in and out of 
O'Hare, is really dangerous. It is dangerous.
  We have pollution, noise pollution. We have air pollution. And now we 
are going to have a safety situation which is really dangerous. Now, 
that does not solve the problem of capacity, because we need it. We are 
up to the hilt at O'Hare. Do we expand? What is the most efficient, 
cheapest, effective way to meet the need for capacity?
  Peotone. Build another airport. New York has Newark, Idlewild, John 
F. Kennedy. That shows how old I am, Idlewild, LaGuardia, of course, 
which we all go in and out of regularly. But Chicago has Midway, which 
the gentleman has a proprietary interest in, and O'Hare. So we need 
another airport, one that can be out in the green where it can expand, 
where it has a buffer so that the homes that are as adjacent to it as 
possible can survive.
  This is an answer to a real problem. Why do not we take that answer? 
Why do we not build Peotone? Because the Mayor would not have much to 
do with it. I have always said he ought to. I would name it after the 
Mayor if he would let it get built. But that is the problem; and I hope 
this bill is defeated.
  Mr. LIPINSKI. Mr. Speaker, how much time remains?
  The SPEAKER pro tempore. The gentleman from Illinois (Mr. Lipinski) 
has 4 minutes remaining. The gentleman from Illinois (Mr. Jackson) has 
no time remaining. The gentleman from Illinois (Mr. Kirk) has 3 minutes 
remaining.
  Mr. LIPINSKI. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, we have heard a lot of charges made here on the floor, 
one of

[[Page 12877]]

which is that this bill will prevent Peotone from ever being built. 
There is nothing in this legislation that prevents Peotone from being 
built if there is a need for Peotone.
  Some people wanted in this legislation, for the United States House 
of Representatives, the U.S. Senate and the President of the United 
States to say we have to build Peotone. We cannot do that. That is not 
right. If we did that, we would have every airport that had a conflict 
in the country coming over here to see us trying to legislate their 
problem out of existence. We do not do that for O'Hare Airport in this 
legislation either.
  Expanding and modernizing O'Hare Airport does not become a Federal 
law until the Federal Aviation Administration has signed off on it. We 
also have an airport in Rockford. We have an airport in Gary. Airports 
that have already been established. In all deference to the gentlemen 
from Illinois (Mr. Jackson), (Mr. Weller), Peotone at the present time 
is a corn field. They have been asking commercial air carriers for 
years to agree to come down to Peotone and operate out of Peotone. As 
of this moment they still do not have one single air carrier who has 
been willing to say they would go down and operate out of Peotone.
  They talk about relocating individuals because of O'Hare's expansion. 
If you were to build Peotone, you would relocate almost three times as 
many individuals as you will by expanding and modernizing O'Hare 
Airport.
  The only way to solve the aviation gridlock problem in this country 
is by modernizing and expanding O'Hare Airport. If the capacity needs 
grow that much greater in the future, put some of that commercial 
aviation into Gary, put some of it into Rockford, build Peotone. 
Nothing in this legislation prevents Peotone from being built.
  This is the one piece of legislation that this Congress will act upon 
this year that can truly expand aviation capacity in this country and 
for the rest of the world.
  Mr. Speaker, I yield back the balance of my time.
  Mr. KIRK. Mr. Speaker, I yield 3 minutes to the gentleman from 
Florida (Mr. Mica), the distinguished chairman of the Subcommittee on 
Aviation, my chairman, a supporter of this bill.
  Mr. MICA. Mr. Speaker, I thank the gentleman for yielding me time and 
I thank the gentleman for handling this legislation today.
  Having just arrived by air, it sounds like a simple thing, I just 
arrived by air, but remember back to September 11, September 12, 
September 13, and we see the impact that aviation has on every 
American. We see how dependent our economy has become on aviation.
  Mr. Speaker, I chair the subcommittee and I try to be fair, and the 
worst thing to do is get in the middle of a food fight in a delegation 
or delegations of Members affected by legislative proposal.
  I tried to be fair in this proposal. I have the greatest respect for 
the gentleman from Illinois (Mr. Hyde). No one is held in higher esteem 
than the gentleman from Illinois (Mr. Hyde). I have great respect for 
the gentleman from Illinois (Mr. Manzullo). I have tremendous respect 
for the gentleman from Illinois (Mr. Weller) and have worked with him 
on the Peotone question. As chair of the subcommittee, however, I have 
to look not only at their interests but the interests of the Nation and 
the interests of the American people. And this is a difficult battle.
  The gentleman from Illinois (Mr. Hyde) does not want any more planes 
over the residents he represents and feels that this airport is already 
at capacity. The gentleman from Illinois (Mr. Weller) wants additional 
traffic. The gentleman from Illinois (Mr. Manzullo) wants additional 
traffic for an existing facility. But we have to move forward. I 
believe that this is as good a compromise as we can get. It is based on 
codifying an agreement.
  Now, mayors of Chicago come and mayors of Chicago will go. Governors 
of Illinois will come and go.

                              {time}  1700

  One of the problems we have in trying to make these improvements that 
are so key to safety and capacity is that the players keep changing. 
This does codify an agreement, allows us to go forward in our national 
interest.
  Our national interest is, first, the safety of people who fly in and 
out of O'Hare. That airport has been congested. There has not been a 
single runway added since 1971, and something has to give in the 
modernization of those runways and capacity.
  If O'Hare were by itself, we could leave it by itself; but when 
O'Hare closes down, the Nation's air system also closes down. So we 
must do something to deal with that.
  Do we need improvements at O'Hare? Yes, we do. Do we need additional 
capacity at Peotone? I believe we will. Do we need to better utilize 
Rockford and Gary? Yes, and I think through our policy we can bring 
some of those changes about.
  So I support the legislation, and I ask my Members to agree with this 
compromise.
  Mr. KIRK. Mr. Speaker, I yield myself such time as I may consume.
  This bill has the support of the gentleman from Alaska (Mr. Young), 
chairman of the Committee on Transportation and Infrastructure; the 
gentleman from Minnesota (Mr. Oberstar), the ranking minority member; 
the gentleman from Florida (Mr. Mica), the chairman of the Subcommittee 
on Aviation; the gentleman from Illinois (Mr. Lipinski), the ranking 
minority member; Illinois' Governor, a Republican; Chicago's mayor, a 
Democrat; the chamber of commerce and the AFL-CIO. It has no objection 
from the Sierra Club and was scheduled on the floor by Speaker Hastert 
and Minority Leader Gephardt.
  It eliminates delays, not just at O'Hare but over 100 airports 
connecting through O'Hare. It is the right thing to do. I urge adoption 
of the legislation.
  Mr. Speaker, I am inserting for the Record an exchange of letters 
between the gentleman from Alaska (Mr. Young) and the gentleman from 
New York (Mr. Boehlert) regarding H.R. 3479.
                                    U.S. House of Representatives,


                                         Committee on Science,

                                   Washington, DC., July 12, 2002.
     Hon. Don Young,
     Chairman, Committee on Transportation and Infrastructure, 
         House of Representatives, Washington, DC.
       Dear Mr. Chairman. The Committee on Transportation and 
     Infrastructure has had under consideration H.R. 3479 the 
     National Aviation Capacity Expansion Act. In that bill there 
     is a provision which falls under the jurisdiction of the 
     Committee on Science. Specifically, that provision is a sense 
     of Congress amendment which would ask that the Federal 
     Aviation Administration expend monies for research and 
     development for noise mitigation programs.
       By waiving consideration of H.R. 3479 the Committee on 
     Science does not waive any of its jurisdictional rights and 
     prerogatives.
       I ask that you would support our request for conferees on 
     H.R. 3479 or similar legislation if a conference should be 
     convened with the Senate. I also ask that our exchange of 
     letters be included in your committee's report and also in 
     the Congressional Record.
       I look forward to working with you on this and other 
     important pieces of legislation.
           Sincerely,
                                                Sherwood Boehlert,
                                                         Chairman.
                                    U.S. House of Representatives,


               Committee on Transportation and Infrastructure,

                                    Washington, DC, July 12, 2002.
     Hon. Sherwood L. Boehlert,
     Chairman, Committee on Science,
     Washington, DC.
       Dear Mr. Chairman. Thank you for your letter of July 12, 
     2002, regarding H.R. 3479, the National Aviation Capacity 
     Expansion Act, and for your willingness to waive 
     consideration of provisions in the bill that fall within your 
     Committee's jurisdiction under House rules.
       I agree that your waiving consideration of relevant 
     provisions of H.R. 3479 does not waive your Committee's 
     jurisdiction over the bill. I also acknowledge your right to 
     seek conferees on any provisions that are under your 
     Committee's jurisdiction during any House-Senate conference 
     on H.R. 3479 or similar legislation, and will support your 
     request for conferees on such provisions.
       Your letter and this response will be included in the 
     Congressional Record during consideration on the House Floor.
       Thank you for your cooperation in moving this important 
     legislation.
           Sincerely,
                                                         Don Young
                                                         Chairman.

[[Page 12878]]

  Ms. WATERS. Mr. Speaker, I rise to express my opposition to H.R. 
3479, the National Aviation Capacity Expansion Act, which would force 
airport expansion on a community in the Chicago region that is already 
overburdened by airport operations.
  The people of my congressional district in Southern California are 
overburdened by the noise, pollution and traffic congestion generated 
by Los Angeles International Airport (LAX). Airport expansion would 
only exacerbate these problems. That is why I am introducing the 
Careful Airport Planning for Southern California Act (the CAP Act).
  The CAP Act would cap LAX air traffic at its current capacity of 78 
million passengers per year. The CAP Act would encourage airport 
development in Southern California communities that are eager for the 
benefits of a local airport. The CAP Act would ensure that the benefits 
and burdens of airport development are fairly distributed throughout 
the Southern California region.
  I urge my colleagues to support the CAP Act, to oppose the National 
Aviation Capacity Expansion Act and oppose the expansion of Chicago 
O'Hare and LAX.
  Mr. RUSH. Mr. Speaker. I rise in support of H.R. 3479, the National 
Aviation Capacity Expansion Act. This legislation will codify a 
historic agreement reached between the Republican Governor of Illinois 
and the Mayor of Chicago to expand and modernize O'Hare International 
airport. As you know, O'Hare airport is one of the busiest airports in 
this nation and the hub to hundreds of destinations across the globe. 
Therefore, making it the center of our national transportation system.
  Unfortunately, O'Hare is the third leading airport for congestion and 
delays. According to the FAA, O'Hare's systematic flight delays and 
cancellations has a crippling affect on our nation's aviation system.
  Many of us, and the flying public, have spent countless hours sitting 
on a runway or in an airport waiting for a flight to taxi or depart. In 
2000, it was estimated that O'Hare airport had 545 delays, or 63.3 
delays per 1,000 operations. The principal reason attributed for these 
delays rests solely on the fact that O'Hare airport has antiquated 
runways. Hence, expanding O'Hare's runways is essential in remedying 
our nation's aviation crisis. It is estimated that modernizing O'Hare 
airport will reduce air traffic delays by 79 percent and weather delays 
by 95 percent.
  I am glad to see that this bill includes a provision to develop a 
third Airport in Illinois. This airport, known as the Peotone Airport, 
will provide our nation's air transportation system with the additional 
relief required to reduce airport congestion while creating thousands 
of construction and permanent jobs for the South Suburban region of the 
state.
  We need solutions to aviation delays and congestion. Let's end this 
20 year old debate. Expanding O'Hare and constructing a third airport 
is the right thing to do. I urge my colleagues on both sides of the 
aisle to support this critical legislation.
  Mr. BLAGOJEVICH. Mr. Speaker, I am honored to join my colleague from 
Illinois, Mr. Lipinski, here today in supporting legislation that is 
very important not only to my constituents in Illinois, but to the 
entire nation. I would also like to thank the distinguished Speaker, 
Mr. Hastert, for allowing this bill to come before us today.
  I have been proud to serve as an original cosponsor of the National 
Aviation Capacity Expansion Act here in the House, and to have worked 
in Illinois with a broad coalition of labor, business and civic leaders 
to promote the effort in Illinois. Today is the result of the unified 
effort of diverse groups of Illinoisans who have joined to fight for a 
proposal that will strengthen our state's economic and fiscal health. 
The bill would create 195,000 new jobs, and would bring an estimated 
$19 billion to the State of Illinois.
  This bill calls for comprehensive expansion of O'Hare. H.R. 3749 
calls for each of the essential elements that transportation industry 
experts and local officials agree must be included in any effective 
O'Hare modernization proposal: foremost among them, the addition of a 
southern runway, the reconfiguration of existing runways, and the 
introduction of western access to the airport.
  I also commend Congress' commitment to addressing the crucial issue 
of the nation's aviation capacity. The National Aviation Capacity 
Expansion Act would not only benefit my constituents and the State of 
Illinois, it would have an affect on the entire nation. O'Hare is not 
only the world's busiest airport, but it is a critical national hub 
through which thousands of flights connect everyday. Congestion in 
Chicago has a ripple effect throughout the United States and abroad, 
grounding and delaying flights miles away, some that are not even bound 
for O'Hare.
  In addition to inconveniencing travelers, these delays and congestion 
cripple the ability of businesses to function effectively. The gridlock 
at O'Hare has been responsible for everything from missed business 
meetings to delayed shipments of goods. Mr. Lipinski's bill would 
reduce delays by 79 percent, and with it save a projected $380 million 
that is lost due to the delays.
  O'Hare's airfield has not been improved since 1971. Repeated 
initiatives to modernize it fell prey to local political disputes that 
led to delays in the project in recent years. Last year, however, the 
Mayor of the City of Chicago and the Governor of Illinois reached an 
historic agreement to modernize O'Hare and take an inclusive approach 
to meet the aviation needs of Chicago and the nation. On behalf of 
Illinois, and with the support of elected officials and businesses, 
labor and community groups across the nation, they are working with 
Congress to help meet the long-term transportation needs of the nation.
  Such State and local leadership demonstrates that Illinois takes its 
responsibility to the nation very seriously. Nearly 10,000 
organizations and individuals in all 50 states have voiced their 
support for expanding Chicago's aviation capacity. H.R. 3479 has been 
endorsed by a wide range of national groups. The bill has received the 
support of the U.S. Chamber of Commerce, the AFL-CIO, the National Air 
Traffic Controllers Association, the Airline Pilots Association, the 
Aircraft Owners and Pilots Association and the National Air 
Transportation Association--to name just a few.
  This broad base of support speaks to the legislation's vital impact 
on the efficiency and reliability of our aviation infrastructure, as 
well as to the unique opportunity for enhanced business activity and 
increased job creation that would accompany comprehensive O'Hare 
expansion. As with the delays at the airport, a failure to keep this 
economic engine vibrant will surely affect businesses and working women 
and men in many parts of the nation. It is important to note that 
O'Hare already generates some $35 billion annually in economic activity 
and produces more than 400,000 jobs in northeastern Illinois and 
northwest Indiana. This includes tens of thousands of people whose jobs 
are tied directly to the travel and tourism industry and countless 
others--employed in virtually every sector of the economy--whose wages 
are earned thanks to the economic engine that is O'Hare.
  I support H.R. 3479 because I am committed to ensuring that the 
economic security of those workers--and that of nearly 200,000 new 
workers--will expand and grow.
  The time to act on O'Hare's expansion is today. H.R. 3479 represents 
an historic opportunity that we must seize. By doing so, we will 
guarantee a safe, reliable air transportation system for our 
constituents. We will also demonstrate our commitment to a healthy 
economy and our ability to take decisive action in the face of a 
national need.
  I respectfully urge you to support this vital legislation.
  Mr. YOUNG of Alaska. Mr. Speaker, I rise in support of H.R. 3479, the 
National Aviation Capacity Expansion Act.
  This Bill is long overdue.
  Chicago O'Hare has been in need of a new runway for the last 20 
years.
  It's annually one of the worst airports in terms of cancellations and 
delays.
  What's worse, problems at O'Hare ripple through our entire system, 
creating tie-ups and delays at dozens of other airports.
  This bill furthers the agreement reached by local and State leaders 
to allow the city of Chicago to go ahead with a proposed capacity 
expansion project from O'Hare.
  It likewise allows the State to go forward with its proposal for 
peotone and guarantees that Meig's Field will remain open.
  I support H.R. 3479 to address these vital national transportation 
issues and urge everyone to support this bill.
  Mr. DAVIS of Illinois. Mr. Speaker, I would like to commend Mr. 
Lipinski for his leadership concerning transportation issues in 
Illinois and especially the issue of O'Hare Expansion and today I stand 
in firm support of H.R. 3479.
  Chicago has a vast and growing transportation industry. Over the 
years Chicago's O'Hare International Airport has continued its growth, 
in traffic and demand. Presently, O'Hare ranks as the Nation's first or 
second busiest airport with nearly 34,000,000 annual passengers 
traveling both domestically and internationally.
  Expanding O'Hare offers an array of benefits: from employment to 
economic growth. As Chicago continues to grow, O'Hare continues to 
experience the backlog of delays. According to the Airport Capacity 
Benchmark Report in 2001, O'Hare was the third most delayed airport.
  Sitting in the heart of the Mid West, these delays continue to burden 
connecting airports

[[Page 12879]]

creating a snowball affect and frustrated passengers. By the addition 
of runways, and the expansion of O'Hare delay times will diminish and 
air travel at Chicago's bustling O'Hare will undoubtedly improve for 
the consumer and the region.
  I encourage my colleagues to support H.R. 3479.
  Mr. KIRK. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore (Mr. Ryan of Wisconsin). The question is on 
the motion offered by the gentleman from Illinois (Mr. Kirk) that the 
House suspend the rules and pass the bill, H.R. 3479, as amended.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds of 
those present have voted in the affirmative.
  Mr. JACKSON of Illinois. Mr. Speaker, on that I demand the yeas and 
nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the 
Chair's prior announcement, further proceedings on this motion will be 
postponed.

                          ____________________