H5114 CONGRESSIONAL RECORD — HOUSE July 23, 2002 crisis in the future as more Americans need lution provided for some tax relief. But the even deeper into deficit, and spend even more long term care services. This bill is an impor- House has already adopted tax bills totaling of the Social Security Trust Fund surplus. tant first step in our effort to making long term $43.145 billion through fiscal year 2007. The We continue to consider legislation without care insurance plans more affordable and ac- 2003 budget resolution provided for only any coherent Republican budget plan. The $27.853 billion over five years. Attached is a cessible. Republicans claim that their budget provides Mr. SPRATT. Mr. Speaker, few would ques- table compiled by the House Budget Com- tight fiscal management. But then the Repub- tion the goals of H.R. 4946. Most of us see mittee Democratic staff that documents these lican leadership again and again schedules the need to provide assistance to those bur- figures. legislation that violates their own budget. dened by the costs of long-term care. How- There is no room for these tax cuts under ever, once again we are approaching an issue the fiscal plan that is supposed to be our Mr. Speaker, as we speak, we are sliding with fiscal impact in a vacuum, without a plan guide. Either these tax cuts are not real, and deep into deficit. It is time for all of us to sit to guide us. we are passing tax bills that will never become down together and hammer out a real budget Republicans claim that this bill is consistent law; or the 2003 House Republican budget is that saves Social Security, pays down the with their budget resolution, because the reso- not real, and we are about to tax cut our way debt, and protects national priorities. COSTS OF TAX BILLS PASSED BY THE HOUSE THUS FAR

Title 2002–2007 2002–2012 Bill No. Status

Clergy Housing Clarification Act ...... ¥0.007 ¥0.033 H.R. 4156 ...... Enacted into Law. Energy Tax Policy Act ...... 22.759 33.521 H.R. 4 ...... Passed the House. Encouraging Work and Supporting Marriage Act ...... 0.907 0.908 H.R. 4626 ...... Passed the House. Expansion of Adoption Benefits ...... 0.000 0.401 H.R. 4800 ...... Passed the House. Holocaust Restitution Tax Fairness Act ...... 0.000 0.003 H.R. 4823 ...... Passed the House. Marriage Penalty Tax Bill ...... 0.000 42.000 H.R. 4019 ...... Passed the House. Retirement Savings Security Act ...... 0.000 6.105 H.R. 4931 ...... Passed the House. Armed Forces Tax Fairness Act ...... 0.069 0.156 H.R. 5063 ...... Passed the House. Pension Security Act ...... 10.440 24.615 H.R. 3762 ...... Passed the House. Tax Relief Guarantee Act ...... 8.977 373.712 H.R. 586 ...... Passed the House. Grand total ...... 43.145 481.388 Concurrent Resolution on the Budget ...... 27.853 N.A. H. Con. Res. 353 ...... Available ...... ¥15.292 ¥481.388 Improving Access to Long-Term Care Act ...... 1.501 5.487 H.R. 4946 ...... On the Floor.

Mr. SHAYS. Mr. Speaker, I rise in strong The yeas and nays were ordered. with 64,600,000 at London Heathrow Inter- support of H.R. 4946, the Improving Access to The SPEAKER pro tempore. Pursu- national Airport, Europe’s busiest airport, Long-Term Care Act. ant to clause 8 of rule XX and the and 36,700,000 at Kimpo International Air- H.R. 4946 phases in tax deductions for indi- Chair’s prior announcement, further port, Korea’s busiest airport, 7,400,000 at viduals who pay 50 percent of their long-term Narita International Airport, Japan’s busiest proceedings on this motion will be airport, 23,700,000 at Kingsford-Smith Inter- care costs. The deduction can be used for the postponed. national Airport, Australia’s busiest airport, taxpayer, a spouse or a dependent. The chal- f and 6,200,000 at Ezeiza International Airport, lenge of caring for a loved one over years Argentina’s busiest airport, as well as South and, in some cases, decades can literally GENERAL LEAVE America’s busiest airport. break families apart and exhaust a lifetime of Mr. HAYWORTH. Mr. Speaker, I ask (2) The Airport Capacity Benchmark Re- savings. Many families do not use private unanimous consent that all Members port 2001 ranks O’Hare as the third most de- long-term care insurance to help protect layed airport in the United States. Overall, may have 5 legislative days within slightly more than 6 percent of all flights at against financial and emotional strain. I am a which to revise and extend their re- strong advocate for making private long-term O’Hare are delayed significantly (more than marks and include extraneous material 15 minutes). On good weather days, sched- care more affordable and support providing in- on H.R. 4946, the bill just debated. uled traffic is at or above capacity for 31⁄2 centives—including tax deductions—for the The SPEAKER pro tempore. Is there hours of the day with about 2 percent of purchase of private long-term care insurance. objection to the request of the gen- flights at O’Hare delayed significantly. In Under the current system Medicare doesn’t tleman from Arizona? adverse weather, capacity is lower and pay for long term care and seniors are forced There was no objection. scheduled traffic exceeds capacity for 8 hours to ‘‘spend down’’ their assets to qualify for of the day, with about 12 percent of the Medicaid, which provides $33 billion in long f flights delayed. term care services each year. This has seri- NATIONAL AVIATION CAPACITY (3) The city of Chicago, Illinois, which owns and operates O’Hare, has been unable ous financial repercussions for retirees and EXPANSION ACT OF 2002 taxpayers who pay for long term care assist- to pursue projects to increase the operating Mr. MICA. Mr. Speaker, I move to capability of O’Hare runways and thereby re- ance through public programs. suspend the rules and pass the bill duce delays because the city of Chicago and As the Baby Boom generation retires, the fi- the State of Illinois have been unable for nancial burden will consume more of the pub- (H.R. 3479) to expand aviation capacity in the Chicago area, as amended. more than 20 years to agree on a plan for lic resources. In the coming decade, people runway reconfiguration and development. over age 65 will represent up to 20 percent or The Clerk read as follows: State law states that such projects at O’Hare more of the population, and the proportion of H.R. 3479 require State approval. the population composed of individuals who Be it enacted by the Senate and House of Rep- (4) On December 5, 2001, the Governor of Il- are over age 85, who are most likely to be in resentatives of the United States of America in linois and the Mayor of Chicago reached an need of long-term care, may double or triple. Congress assembled, agreement to allow the city to go forward with a proposed capacity enhancement I urge my colleagues to vote for this crucial TITLE I—NATIONAL AVIATION CAPACITY EXPANSION project for O’Hare which involves redesign of legislation. the airport’s runway configuration. Mr. HAYWORTH. Mr. Speaker, I SEC. 101. SHORT TITLE. (5) In furtherance of such agreement, the yield back the balance of my time. This title may be cited as the ‘‘National city, with approval of the State, applied for The SPEAKER pro tempore. The Aviation Capacity Expansion Act of 2002’’. and received a master-planning grant from question is on the motion offered by SEC. 102. FINDINGS. the Federal Aviation Administration for the the gentleman from Arizona (Mr. Congress finds the following: capacity enhancement project. HAYWORTH) that the House suspend the (1) O’Hare International Airport consist- (6) The agreement between the city and the rules and pass the bill, H.R. 4946, as ently ranks as the Nation’s first or second State is not binding on future Governors of amended. busiest airport with nearly 34,000,000 annual Illinois. The question was taken. passengers enplanements, almost all of (7) Future Governors of Illinois could stop The SPEAKER pro tempore. In the whom travel in inter-state or foreign com- the O’Hare capacity enhancement project by merce. The Federal Aviation Administra- refusing to issue a certificate required for opinion of the Chair, two-thirds of tion’s most recent data, compiled in the Air- such project under the Illinois Aeronautics those present have voted in the affirm- port Capacity Benchmark Report 2001, Act, or by refusing to submit airport im- ative. projects demand at O’Hare to grow by 18 per- provement grant requests for the project, or Mr. HAYWORTH. Mr. Speaker, on cent over the next decade. O’Hare handles by improperly administering the State im- that I demand the yeas and nays. 72,100,000 passengers annually, compared plementation plan process under the Clean

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00024 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.134 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5115 Air Act (42 U.S.C. 7401 et seq.) to prevent ropolitan region. Like the O’Hare airport ex- ject to Administration guidelines and speci- construction and operation of the project. pansion proposal, expansion efforts by Gary/ fications of general applicability. The Ad- (8) The city of Chicago is unwilling to con- Chicago and Greater Rockford airports ministrator may not approve the runway re- tinue to go forward with the project without should receive full consideration by the Fed- design plan unless the city provides the Ad- assurance that future Governors of Illinois eral Aviation Administration under standard ministrator with information sufficient to will not be able to stop the project, thereby procedures for approving and funding an air- demonstrate that the acoustical treatment endangering the value of the investment of port capacity improvement project, includ- required by this paragraph is feasible. city and Federal resources in the project. ing all applicable safety, utility and effi- (2)(A) Approval by the Administrator of an (9) Because of the importance of O’Hare to ciency, and environmental reviews. airport layout plan that includes the runway the national air transportation system and SEC. 103. STATE, CITY, AND FAA AUTHORITY. redesign plan shall be subject to the condi- the growing congestion at the airport and (a) PROHIBITION.—In furtherance of the pur- tion that noise impact of aircraft operations because of the expenditure of Federal funds pose of this Act to achieve significant air at O’Hare in the calendar year immediately for a master-planning grant for expansion of transportation benefits for interstate and following the year in which the first new capacity at O’Hare, it is important to the na- foreign commerce, if the Federal Aviation runway is first used and in each calendar tional air transportation system, interstate Administration makes, or at any time after year thereafter will be less than the noise commerce, and the efficient expenditure of December 5, 2001 has made, a grant to the impact in calendar year 2000. Federal funds, that the city of Chicago’s pro- city of Chicago, Illinois, with the approval of (B) The Administrator shall make the de- posals to the Federal Aviation Administra- the State of Illinois for planning or construc- termination described in subparagraph (A)— tion have an opportunity to be considered for tion of runway improvements at O’Hare (i) using, to the extent practicable, the Federal approval and possible funding, that International Airport, the State of Illinois, procedures specified in part 150 of title 14, the city’s requests for changes to the State and any instrumentality or political subdivi- Code of Federal Regulations; implementation plan to allow such projects sion of the State, are prohibited from exer- (ii) using the same method for calendar not be denied arbitrarily, and that, if the cising authority under sections 38.01, 47, and year 2000 and for each forecast year; and Federal Aviation Administration approves 48 of the Illinois Aeronautics Act (620 ILCS (iii) by determining noise impact solely in the project and funding for a portion of its 5/) to prevent, or have the effect of terms of the aggregate number of square cost, the city can implement and use the preventing— miles and the aggregate number of single- project. family houses and schools exposed to 65 or (10) Any application submitted by the city (1) further consideration by the Federal Aviation Administration of an O’Hare air- greater decibels using the DNL metric, in- of Chicago for expansion of O’Hare should be cluding only single-family houses and evaluated by the Federal Aviation Adminis- port layout plan directly related to the agreement reached by the State and the city schools in existence on the last day of cal- tration and other Federal agencies under all endar year 2000. The Administrator shall applicable Federal laws and regulations and on December 5, 2001, with respect to O’Hare; (2) construction of projects approved by make such determination based on informa- should be approved only if the application tion provided by the city of Chicago, which meets all requirements imposed by such laws the Administration in such O’Hare airport layout plan; or shall be independently verified by the Ad- and regulations. ministrator. (11) As part of the agreement between the (3) application by the city of Chicago for (C) The conditions described in this sub- city and the State allowing the city to sub- Federal airport improvement program fund- section shall be enforceable exclusively mit an application for improvement of ing for projects approved by the Administra- through the submission and approval of a O’Hare, there has been an agreement for the tion and shown on such O’Hare airport lay- noise compatibility plan under part 150 of continued operation of Merrill C. Meigs Field out plan. title 14, Code of Federal Regulations. The by the city, and it has also been agreed that, (b) APPLICATIONS FOR FEDERAL FUNDING.— noise compatibility plan submitted by the if the city does not follow the agreement on Notwithstanding any other provision of law, city of Chicago shall provide for compliance Meigs Field, Federal airport improvement the city of Chicago is authorized to submit with this subsection. The Administrator program funds should be withheld from the directly to the Federal Aviation Administra- shall approve measures sufficient for compli- city for O’Hare. tion without the approval of the State of Illi- (12) To facilitate implementation of the nois, applications for Federal airport im- ance with this subsection in accordance with agreement allowing the city to submit an ap- provement program funding for planning and procedures under such part 150. The United plication for O’Hare, it is desirable to require construction of a project shown on an O’Hare States shall have no financial responsibility by law that Federal airport improvement airport layout plan directly related to the or liability if operations at O’Hare in any program funds for O’Hare be administered to agreement reached on December 5, 2001, and year do not satisfy the conditions in this require continued operation of Merrill C. to accept, receive, and disburse such funds subsection. Meigs Field by the city, as proposed in the without the approval of the State of Illinois. (f) REPORT TO CONGRESS.—If the runway re- agreement. (c) LIMITATION.—If the Federal Aviation design plan described in this section has not (13) To facilitate implementation of the Administration determines that an O’Hare received all Federal, State, and local permits agreement allowing the city to submit an ap- airport layout plan directly related to the and approvals necessary to begin construc- plication for O’Hare, it is desirable to enact agreement reached on December 5, 2001, will tion by December 31, 2004, the Administrator into law provisions of the agreement relating not be approved by the Administration, sub- shall submit a status report to the Com- to noise and public roadway access. These sections (a) and (b) of this section shall ex- mittee on Commerce, Science, and Transpor- provisions are not inconsistent with Federal pire and be of no further effect on the date of tation of the Senate and the Committee on law. such determination. Transportation and Infrastructure of the (14) If the Federal Aviation Administration (d) WESTERN PUBLIC ROADWAY ACCESS.—As House of Representatives within 120 days of approves an airport layout plan for O’Hare provided in the December 5, 2001, agreement such date identifying each permit and ap- directly related to the agreement reached on referred to in subsection (a), the Adminis- proval necessary for the project and the sta- December 5, 2001, such approvals will con- trator of the Federal Aviation Administra- tus of each such action. stitute an action of the United States under tion shall not consider an airport layout (g) JUDICIAL REVIEW.— An order issued by Federal law and will be an important first plan submitted by the city of Chicago that the Administrator, in whole or in part, under step in the process by which the Government includes the runway redesign plan, unless this section shall be deemed to be an order could decide that these plans should receive the airport layout plan includes public road- issued under part A of subtitle VII of title 49, Federal assistance under chapter 471 of title way access through the existing western United States Code, and shall be reviewed in 49, United States Code, relating to airport boundary of O’Hare to passenger terminal accordance with the procedure in section development. and parking facilities located inside the 46110 of such title. (15) The agreement between the State of Il- boundary of O’Hare and reasonably acces- (h) DEFINITION.—In this section, the terms linois and the city of Chicago includes agree- sible to such western access. Approval of ‘‘airport layout plan directly related to the ment that the construction of an airport in western public roadway access shall be sub- agreement reached on December 5, 2001’’ and Peotone, Illinois, would be proposed by the ject to the condition that the cost of con- ‘‘such airport layout plan’’ mean a plan that State to the Federal Aviation Administra- struction be paid for from airport revenues shows— tion. Like the O’Hare expansion proposal, consistent with Administration revenue use (1) 6 parallel runways at O’Hare oriented in the Peotone proposal should receive full con- requirements. the east-west direction with the capability sideration by the Federal Aviation Adminis- (e) NOISE MITIGATION.—As provided in the for 4 simultaneous independent visual air- tration under standard procedures for ap- December 5, 2001, agreement referred to in craft arrivals in both directions, and all as- proving and funding an airport improvement subsection (a), the following apply: sociated taxiways, navigational facilities, project, including all applicable safety, util- (1) Approval by the Administrator of an and other related facilities; and ity and efficiency, and environmental re- airport layout plan that includes the runway (2) closure of existing runways 14L–32R, view. redesign plan shall require the city of Chi- 14R–32L and 18–36 at O’Hare. (16) Gary/Chicago Airport in Gary, Indiana, cago to offer acoustical treatment of all sin- SEC. 104. CLEAN AIR ACT. and the Greater Rockford Airport, Illinois, gle-family houses and schools located within (a) IMPLEMENTATION PLAN.—An implemen- may alleviate congestion and provide addi- the 65 DNL noise contour for each construc- tation plan shall be prepared by the State of tional capacity in the greater Chicago met- tion phase of the runway redesign plan, sub- Illinois under the Clean Air Act (42 U.S.C.

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7401 et seq.) in accordance with the State’s (5) Net operating losses resulting from op- ‘‘(b) COORDINATED REVIEWS.—The coordi- customary practices for accounting for and eration of Meigs Field, to the extent con- nated review process under this section shall regulating emissions associated with activ- sistent with law, are expected to be paid by provide that all environmental reviews, ity at commercial service airports. The the 2 air carriers at O’Hare International analyses, opinions, permits, licenses, and ap- State shall not deviate from its customary Airport that paid the highest amount of air- provals that must be issued or made by a practices under the Clean Air Act for the port fees and charges at O’Hare Inter- Federal agency or airport sponsor for an air- purpose of interfering with the construction national Airport for the preceding calendar port capacity enhancement project at a con- of a runway pursuant to the redesign plan or year. Notwithstanding any other provision of gested airport will be conducted concur- the south surburban airport. At the request law, the city of Chicago may use airport rev- rently, to the maximum extent practicable, of the Administrator of the Federal Aviation enues generated at O’Hare International Air- and completed within a time period estab- Administration, the Administrator of the port to fund the operation of Meigs Field. lished by the Secretary, in cooperation with Environmental Protection Agency shall, in SEC. 106. APPLICATION WITH EXISTING LAW. the agencies identified under subsection (c) consultation with the Administrator of the Nothing in this Act shall give any priority with respect to the project. ‘‘(c) IDENTIFICATION OF JURISDICTIONAL Federal Aviation Administration, determine to or affect availability or amounts of funds AGENCIES.—With respect to each airport ca- that the foregoing condition has been satis- under chapter 471 of title 49, United States pacity enhancement project at a congested fied before approving an implementation Code, to pay the costs of O’Hare Inter- airport, the Secretary shall identify, as soon plan. Nothing in this section shall be con- national Airport, improvements shown on an as practicable, all Federal and State agen- strued to affect the obligations of the State airport layout plan directly related to the cies that may have jurisdiction over environ- under section 176(c) of the Clean Air Act (42 agreement reached by the State of Illinois mental-related matters that may be affected U.S.C. 7506(c)). and the city of Chicago, Illinois, on Decem- (b) LIMITATION ON APPROVAL.—The Admin- by the project or may be required by law to ber 5, 2001. conduct an environmental-related review or istrator of the Federal Aviation Administra- SEC. 107. SENSE OF CONGRESS ON QUIET AIR- tion shall not approve the runway redesign analysis of the project or determine whether CRAFT TECHNOLOGY RESEARCH to issue an environmental-related permit, li- plan unless the Administrator of the Federal AND DEVELOPMENT. Aviation Administration determines that cense, or approval for the project. It is the sense of the Congress that the Of- ‘‘(d) STATE AUTHORITY.—If a coordinated the construction and operation will include, fice of Environment and Energy of the Fed- review process is being implemented under to the maximum extent feasible, the best eral Aviation Administration should be fund- this section by the Secretary with respect to management practices then reasonably ed to carry out noise mitigation program- a project at an airport within the boundaries available to and used by operators of com- ming and quiet aircraft technology research of a State, the State, consistent with State mercial service airports to mitigate emis- and development at a level of $37,000,000 for law, may choose to participate in such proc- sions regulated under the implementation fiscal year 2004 and $47,000,000 for fiscal year ess and provide that all State agencies that plan. 2005. have jurisdiction over environmental-related SEC. 105. MERRILL C. MEIGS FIELD. TITLE II—AIRPORT STREAMLINING matters that may be affected by the project The State of Illinois and the city of Chi- APPROVAL PROCESS or may be required by law to conduct an en- cago, Illinois, have agreed to the following: SEC. 201. SHORT TITLE. vironmental-related review or analysis of (1) Until January 1, 2026, the Administrator This title may be cited as the ‘‘Airport the project or determine whether to issue an of the Federal Aviation Administration shall Streamlining Approval Process Act of 2002’’. environmental-related permit, license, or ap- withhold all Federal airport grant funds re- SEC. 202. FINDINGS. proval for the project, be subject to the proc- specting O’Hare International Airport, other ess. Congress finds that— than grants involving national security and ‘‘(e) MEMORANDUM OF UNDERSTANDING.— safety, unless the Administrator is reason- (1) airports play a major role in interstate The coordinated review process developed ably satisfied that the following conditions and foreign commerce; under this section may be incorporated into have been met: (2) congestion and delays at our Nation’s a memorandum of understanding for a (A) Merrill C. Meigs Field in Chicago ei- major airports have a significant negative project between the Secretary and the heads ther is being operated by the city of Chicago impact on our Nation’s economy; of other Federal and State agencies identi- as an airport or has been closed by the Ad- (3) airport capacity enhancement projects fied under subsection (c) with respect to the ministration for reasons beyond the city’s at congested airports are a national priority project and the airport sponsor. control. and should be constructed on an expedited ‘‘(f) EFFECT OF FAILURE TO MEET DEAD- (B) The city of Chicago is providing, at its basis; LINE.— own expense, all off-airport roads and other (4) airport capacity enhancement projects ‘‘(1) NOTIFICATION OF CONGRESS AND CEQ.—If access, services, equipment, and other per- must include an environmental review proc- the Secretary determines that a Federal sonal property that the city provided in con- ess that provides local citizenry an oppor- agency, State agency, or airport sponsor nection with the operation of Meigs Field on tunity for consideration of and appropriate that is participating in a coordinated review and prior to December 1, 2001. action to address environmental concerns; process under this section with respect to a (C) The city of Chicago is operating Meigs and project has not met a deadline established Field, at its own expense, at all times as a (5) the Federal Aviation Administration, under subsection (b) for the project, the Sec- public airport in good condition and repair airport authorities, communities, and other retary shall notify, within 30 days of the date open to all users capable of utilizing the air- Federal, State, and local government agen- of such determination, the Committee on port and is maintaining the airport for such cies must work together to develop a plan, Transportation and Infrastructure of the public operations at least from 6:00 A.M. to set and honor milestones and deadlines, and House of Representatives, the Committee on 10:00 P.M. 7 days a week whenever weather work to protect the environment while sus- Commerce, Science, and Transportation of conditions permit. taining the economic vitality that will re- the Senate, the Council on Environmental (D) The city of Chicago is providing or sult from the continued growth of aviation. Quality, and the agency or sponsor involved causing its agents or independent contrac- SEC. 203. PROMOTION OF NEW RUNWAYS. about the failure to meet the deadline. tors to provide all services (including police Section 40104 of title 49, United States ‘‘(2) AGENCY REPORT.—Not later than 30 and fire protection services) provided or of- Code, is amended by adding at the end the days after date of receipt of a notice under fered at Meigs Field on or immediately prior following: paragraph (1), the agency or sponsor involved to December 1, 2001, including tie-down, ter- ‘‘(c) AIRPORT CAPACITY ENHANCEMENT shall submit a report to the Secretary, the minal, refueling, and repair services, at rates PROJECTS AT CONGESTED AIRPORTS.—In car- Committee on Transportation and Infra- that reflect actual costs of providing such rying out subsection (a), the Administrator structure of the House of Representatives, goods and services. shall take action to encourage the construc- the Committee on Commerce, Science, and (2) If Meigs Field is closed by the Adminis- tion of airport capacity enhancement Transportation of the Senate, and the Coun- tration for reasons beyond the city of Chi- projects at congested airports as those terms cil on Environmental Quality explaining why cago’s control, the conditions described in are defined in section 47179.’’. the agency or sponsor did not meet the dead- subparagraphs (B) through (D) of paragraph SEC. 204. AIRPORT PROJECT STREAMLINING. line and what actions it intends to take to (1) shall not apply. (a) IN GENERAL.—Chapter 471 of title 49, complete or issue the required review, anal- (3) After January 1, 2006, the Administrator United States Code, is amended by inserting ysis, opinion, license, or approval. shall not withhold Federal airport grant after section 47153 the following: ‘‘(g) PURPOSE AND NEED.—For any environ- funds to the extent the Administrator deter- mental review, analysis, opinion, permit, li- ‘‘SUBCHAPTER III—AIRPORT PROJECT mines that withholding of such funds would cense, or approval that must be issued or STREAMLINING create an unreasonable burden on interstate made by a Federal or State agency that is commerce. ‘‘§ 47171. DOT as lead agency participating in a coordinated review process (4) The Administrator shall not enforce the ‘‘(a) AIRPORT PROJECT REVIEW PROCESS.— under this section with respect to an airport conditions listed in paragraph (1) if the State The Secretary of Transportation shall de- capacity enhancement project at a congested of Illinois enacts a law on or after January velop and implement a coordinated review airport and that requires an analysis of pur- 1, 2006, authorizing the closure of Meigs process for airport capacity enhancement pose and need for the project, the agency, Field. projects at congested airports. notwithstanding any other provision of law,

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00026 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.012 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5117 shall be bound by the project purpose and sion of law, the Administrator of the Federal may order the Secretary or the head of such need as defined by the Secretary. Aviation Administration may accept funds other agency to conduct further proceedings. ‘‘(h) ALTERNATIVES ANALYSIS.—The Sec- from an airport sponsor, including funds pro- After reasonable notice to the Secretary or retary shall determine the reasonable alter- vided to the sponsor under section 47114(c), the head of such other agency, the court may natives to an airport capacity enhancement to hire additional staff or obtain the services grant interim relief by staying the order or project at a congested airport. Any other of consultants in order to facilitate the time- taking other appropriate action when good Federal or State agency that is participating ly processing, review, and completion of en- cause for its action exists. Findings of fact in a coordinated review process under this vironmental activities associated with an by the Secretary or the head of such other section with respect to the project shall con- airport development project. agency are conclusive if supported by sub- sider only those alternatives to the project ‘‘(b) ADMINISTRATIVE PROVISION.—Instead stantial evidence. that the Secretary has determined are rea- of payment from an airport sponsor from ‘‘(d) REQUIREMENT FOR PRIOR OBJECTION.— sonable. funds apportioned to the sponsor under sec- In reviewing an order of the Secretary or the ‘‘(i) SOLICITATION AND CONSIDERATION OF tion 47114, the Administrator, with agree- head of any other Federal agency under this COMMENTS.—In applying subsections (g) and ment of the sponsor, may transfer funds that section, the court may consider an objection (h), the Secretary shall solicit and consider would otherwise be apportioned to the spon- to the action of the Secretary or the head of comments from interested persons and gov- sor under section 47114 to the account used such other agency only if the objection was ernmental entities. by the Administrator for activities described made in the proceeding conducted by the ‘‘§ 47172. Categorical exclusions in subsection (a). Secretary or the head of such other agency ‘‘Not later than 120 days after the date of ‘‘(c) RECEIPTS CREDITED AS OFFSETTING or if there was a reasonable ground for not enactment of this section, the Secretary of COLLECTIONS.—Notwithstanding section 3302 making the objection in the proceeding. Transportation shall develop and publish a of title 31, any funds accepted under this sec- ‘‘(e) SUPREME COURT REVIEW.—A decision list of categorical exclusions from the re- tion, except funds transferred pursuant to by a court under this section may be re- quirement that an environmental assess- subsection (b)— viewed only by the Supreme Court under sec- ment or an environmental impact statement ‘‘(1) shall be credited as offsetting collec- tion 1254 of title 28. be prepared under the National Environ- tions to the account that finances the activi- ‘‘(f) ORDER DEFINED.—In this section, the mental Policy Act of 1969 (42 U.S.C. 4321 et ties and services for which the funds are ac- term ‘order’ includes a record of decision or seq.) for projects at airports. cepted; a finding of no significant impact. ‘‘(2) shall be available for expenditure only ‘‘§ 47173. Access restrictions to ease construc- ‘‘§ 47178. Definitions to pay the costs of activities and services for ‘‘In this subchapter, the following defini- tion which the funds are accepted; and ‘‘At the request of an airport sponsor for a tions apply: ‘‘(3) shall remain available until expended. ‘‘(1) AIRPORT SPONSOR.—The term ‘airport congested airport, the Secretary of Trans- ‘‘(d) MAINTENANCE OF EFFORT.—No funds sponsor’ has the meaning given the term portation may approve a restriction on use may be accepted pursuant to subsection (a), ‘sponsor’ under section 47102. of a runway to be constructed at the airport or transferred pursuant to subsection (b), in ‘‘(2) CONGESTED AIRPORT.—The term ‘con- to minimize potentially significant adverse any fiscal year in which the Federal Avia- gested airport’ means an airport that ac- noise impacts from the runway only if the tion Administration does not allocate at counted for at least 1 percent of all delayed Secretary determines that imposition of the least the amount it expended in fiscal year aircraft operations in the United States in restriction— 2002, excluding amounts accepted pursuant the most recent year for which such data is ‘‘(1) is necessary to mitigate those impacts to section 337 of the Department of Trans- available and an airport listed in table 1 of and expedite construction of the runway; portation and Related Agencies Appropria- the Federal Aviation Administration’s Air- ‘‘(2) is the most appropriate and a cost-ef- tions Act, 2002 (115 Stat. 862), for the activi- port Capacity Benchmark Report 2001. fective measure to mitigate those impacts, ties described in subsection (a). ‘‘(3) AIRPORT CAPACITY ENHANCEMENT taking into consideration any environmental ‘‘§ 47176. Authorization of appropriations tradeoffs associated with the restriction; and PROJECT.—The term ‘airport capacity en- ‘‘In addition to the amounts authorized to ‘‘(3) would not adversely affect service to hancement project’ means— be appropriated under section 106(k), there is small communities, adversely affect safety ‘‘(A) a project for construction or exten- authorized to be appropriated to the Sec- or efficiency of the national airspace system, sion of a runway, including any land acquisi- retary of Transportation, out of the Airport unjustly discriminate against any class of tion, taxiway, or safety area associated with and Airway Trust Fund established under user of the airport, or impose an undue bur- the runway or runway extension; and section 9502 of the Internal Revenue Code of den on interstate or foreign commerce. ‘‘(B) such other airport development 1986 (26 U.S.C. 9502), $2,100,000 for fiscal year projects as the Secretary may designate as ‘‘§ 47174. Airport revenue to pay for mitiga- 2003 and $4,200,000 for each fiscal year there- facilitating a reduction in air traffic conges- tion after to facilitate the timely processing, re- tion and delays.’’. ‘‘(a) IN GENERAL.—Notwithstanding section view, and completion of environmental ac- (b) CONFORMING AMENDMENT.—The analysis 47107(b), section 47133, or any other provision tivities associated with airport capacity en- for chapter 471 of such title is amended by of this title, the Secretary of Transportation hancement projects at congested airports. adding at the end the following: may allow an airport sponsor carrying out ‘‘§ 47177. Judicial review ‘‘SUBCHAPTER III—AIRPORT PROJECT an airport capacity enhancement project at ‘‘(a) FILING AND VENUE.—A person dis- STREAMLINING a congested airport to make payments, out closing a substantial interest in an order ‘‘47171. DOT as lead agency. of revenues generated at the airport (includ- issued by the Secretary of Transportation or ‘‘47172. Categorical exclusions. ing local taxes on aviation fuel), for meas- the head of any other Federal agency under ‘‘47173. Access restrictions to ease construc- ures to mitigate the environmental impacts this part or a person or agency relying on tion. of the project if the Secretary finds that— any determination made under this part may ‘‘47174. Airport revenue to pay for mitiga- ‘‘(1) the mitigation measures are included apply for review of the order by filing a peti- tion. as part of, or are consistent with, the pre- tion for review in the United States Court of ‘‘47175. Airport funding of FAA staff. ferred alternative for the project in the docu- Appeals for the District of Columbia Circuit ‘‘47176. Authorization of appropriations. mentation prepared pursuant to the National or in the court of appeals of the United ‘‘47177. Judicial review. Environmental Policy Act of 1969 (42 U.S.C. States for the circuit in which the person re- ‘‘47178. Definitions.’’. 4321 et seq.); sides or has its principal place of business. SEC. 205. GOVERNOR’S CERTIFICATE. ‘‘(2) the use of such revenues will provide a The petition must be filed not later than 60 Section 47106(c) of title 49, United States significant incentive for, or remove an im- days after the order is issued. The court may Code, is amended— pediment to, approval of the project by a allow the petition to be filed after the 60th (1) in paragraph (1)— State or local government; and day only if there are reasonable grounds for (A) by inserting ‘‘and’’ after the semicolon ‘‘(3) the cost of the mitigation measures is not filing by the 60th day. at the end of subparagraph (A)(ii); reasonable in relation to the mitigation that ‘‘(b) JUDICIAL PROCEDURES.—When a peti- (B) by striking subparagraph (B); and will be achieved. tion is filed under subsection (a) of this sec- (C) by redesignating subparagraph (C) as ‘‘(b) MITIGATION OF AIRCRAFT NOISE.—Miti- tion, the clerk of the court immediately subparagraph (B); gation measures described in subsection (a) shall send a copy of the petition to the Sec- (2) in paragraph (2)(A) by striking ‘‘stage may include the insulation of residential retary or the head of any other Federal agen- 2’’ and inserting ‘‘stage 3’’; buildings and buildings used primarily for cy involved. The Secretary or the head of (3) by striking paragraph (4); and educational or medical purposes to mitigate such other agency shall file with the court a (4) by redesignating paragraph (5) as para- the effects of aircraft noise and the improve- record of any proceeding in which the order graph (4). ment of such buildings as required for the in- was issued. SEC. 206. CONSTRUCTION OF CERTAIN AIRPORT sulation of the buildings under local building ‘‘(c) AUTHORITY OF COURT.—When the peti- CAPACITY PROJECTS. codes. tion is sent to the Secretary or the head of Section 47504(c)(2) of title 49, United States ‘‘§ 47175. Airport funding of FAA staff any other Federal agency involved, the court Code, is amended— ‘‘(a) ACCEPTANCE OF SPONSOR-PROVIDED has exclusive jurisdiction to affirm, amend, (1) by striking ‘‘and’’ at the end of subpara- FUNDS.—Notwithstanding any other provi- modify, or set aside any part of the order and graph (C);

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00027 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.012 pfrm09 PsN: H23PT1 H5118 CONGRESSIONAL RECORD — HOUSE July 23, 2002 (2) by striking the period at the end of sub- expedite that process. However, we do it will protect our national interests, paragraph (D) and inserting ‘‘; and’’; and not want local leaders to change their which is part of my responsibility. So, (3) by adding at the end the following: minds while that process is in an ongo- therefore, I support this legislation. I ‘‘(E) to an airport operator of a congested ing situation and after having spent urge Members on all sides, regardless airport (as defined in section 47178) and a unit of local government referred to in para- millions and millions of taxpayer dol- of their persuasion, to support this bill. graph (1)(A) or (1)(B) of this subsection to lars. Mr. Speaker, I reserve the balance of carry out a project to mitigate noise in the Why should Congress care or become my time. area surrounding the airport if the project is involved in ensuring the viability of Mr. JACKSON of Illinois. Mr. Speak- included as a commitment in a record of de- this important Chicago agreement? It er, I yield myself such time as I may cision of the Federal Aviation Administra- is simple. Chicago O’Hare Airport is ab- consume. tion for an airport capacity enhancement solutely vital to our National aviation First, let me begin by thanking the project (as defined in section 47178) even if system and also to our interstate com- gentleman from Florida (Mr. MICA), the that airport has not met the requirements of merce and this Nation’s economy. chairman, and the gentleman from part 150 of title 14, Code of Federal Regula- O’Hare has consistently ranked as Florida (Mr. LIPINSKI), the ranking tions.’’. one of the world’s busiest airports. It SEC. 207. LIMITATIONS. member, for their work on H.R. 3479. Nothing in this Act, including any amend- supports domestic hub operations for There are many reasons why I oppose ment made by this Act, shall preempt or two major airlines, and over 70 million H.R. 3479, none of which have anything interfere with— Americans a year and travelers use to do with them personally. I want to (1) any practice of seeking public com- this facility. share with my colleagues some reasons ment; and b 1245 why they should be opposed to the Na- (2) any power, jurisdiction, or authority of tional Aviation Capacity and Expan- a State agency or an airport sponsor has Even during the economic downturn sion Act. with respect to carrying out an airport ca- and with the aftermath of the tragic Mr. Speaker, just a week ago, this pacity enhancement project. events of September 11, aircraft activ- House rejected by a small margin this The SPEAKER pro tempore. Pursu- ity at O’Hare was up slightly last year. ant to the rule, the gentleman from Unfortunately, O’Hare continues to be measure. There are a number of bills Florida (Mr. MICA) and the gentleman one of the most congested and delayed that we could be considering before the from Illinois (Mr. LIPINSKI) each will airports in the country. If future con- Congress, including saving Social Secu- control 20 minutes. gestion at O’Hare affected only the rity, Medicare and Medicaid. There are Mr. LIPINSKI. Mr. Speaker, I ask Chicago area, we might not need to a number of important measures that unanimous consent to yield the 20 min- stand here before all of Congress to ad- could be on the suspension calendar, utes that is designated to me to the dress this issue. However, the conges- but what has changed in a week for a gentleman from Illinois (Mr. JACKSON), tion in Chicago, in O’Hare often closes bill that was rejected one week ago to who is a true opponent of this legisla- down and causes serious delay in our be brought back in such short order, tion. aviation activity across the Nation. back on the noncontroversial suspen- The SPEAKER pro tempore. Is there This legislation does provide assur- sion calendar? objection to the request of the gen- ances needed to proceed with the Mr. Speaker, this is a highly con- tleman from Illinois? much-needed projects at O’Hare, and troversial bill. This should offend every There was no objection. again, it is the codification of local and House traditionalist and institution- The SPEAKER pro tempore. The alist. It violates the established proc- Chair recognizes the gentleman from State governments. Some of our colleagues have raised esses set up by the House of Represent- Florida (Mr. MICA). questions regarding this legislation, atives, and even if my colleagues agree Mr. MICA. Mr. Speaker, I yield my- on the substance, they should be self such time as I may consume. even said it is unconstitutional or su- against the process. Mr. Speaker, I am pleased today to persedes State law. That is not the H.R. 3479 should be a stand-alone bill rise in support of H.R. 3479, the Na- case. However, the preemption lan- that is fully debated before the House, tional Aviation Capacity Enhancement guage contained in this legislation is with the possibility of adding amend- Act. This legislation was introduced by extremely limited and is tied to a deci- ments to improve this bill. It should the ranking Democrat of the Sub- sion by the FAA to fund the O’Hare not be on the suspension calendar. committee on Aviation, the gentleman project. The preemption of State law Many of my colleagues believe that from Illinois (Mr. LIPINSKI). would expire immediately upon a deci- This legislation codifies a long- sion by the Federal Aviation Adminis- they are voting to codify, as the gen- sought agreement that was reached be- tration not to fund the construction of tleman from Florida (Mr. MICA) said an tween the Governor of Illinois and the the O’Hare Capacity Enhancement agreement between Mayor Daley and mayor of Chicago to address the crit- Project. the governor of our State, Governor ical aviation needs in the Chicago re- This legislation ensures that State Ryan, but this bill, the House version gion. In December of 2001 after some 20 law will not prevent the Federal Gov- of the bill, does not reflect that deal. years of disagreement and in action, ernment from spending Federal funds Their agreement promised priority State and local leaders approved a plan the way the Federal Government in- status for a south suburban airport in to expand Chicago’s O’Hare Inter- tends they be spent. I would ask this Peotone and O’Hare expansion. While I national Airport. The agreement also body to remember State and local offi- do not support the O’Hare-designed requires full FAA consideration of cials have already reached an agree- plan that is articulated in the bill, and projects at regional reliever airports. ment regarding Chicago’s regional I do believe in O’Hare modernization, These include the proposed South Sub- aviation projects, but the agreement is the idea that this bill provides for urban Airport in Peotone, and airports not binding on future administrations, O’Hare expansion but does not, I re- in Gary, Indiana, and Rockford, Illi- and we are not going to go round in cir- peat, does not, give priority status to nois. cles any longer on this. We have to Peotone, offends those of us who have H.R. 3479 is not, as some have look at the national interest. been fighting at least for the last 16 claimed, an attempt for the Federal Therefore, before committing to a $6 years to make aviation capacity and to Government to in any way usurp local billion capacity enhancement project alleviate the crisis for our entire Na- decision-making authority. The State at O’Hare, and it can even be more at tion, a reality for all Americans. and local decision-makers in the great- this airport, it is absolutely reasonable Both sides agree that there is a ca- er Chicago region have come to an to seek assurance that the agreement pacity crisis at O’Hare. The disagree- agreement. This bill ensures that the will not be abandoned by future State ment comes over how best to solve it. agreement in fact will be implemented, or future debate on this issue. This bill A new south suburban airport in but only if all normal procedures for simply codifies a local agreement that Peotone offers a faster and cheaper and FAA approval are completed and Fed- addresses regional and our national safer, a cleaner and more permanent eral funding is received. transportation needs. solution. What do I mean? I mean that Federal approvals can take years. This bill is good for interstate com- after O’Hare expansion is completed if Title 2 of this legislation would help merce. It is good for our economy, and air travel expands as projected, we will

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00028 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.012 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5119 still be in the same capacity crisis that O’Hare. It is a duopoly, and due to a from Illinois (Mr. LIPINSKI), and I ask we are in today. lack of competition, fares at O’Hare unanimous consent that he be allowed This is a 15-year construction continue climbing at faster than the to control the time. project. So why spend more money, national average. The SPEAKER pro tempore (Mr. take longer, increase environmental Mr. Speaker, I do want to address the ISAKSON). Is there objection to the re- problems, put the flying public at constitutional issue before I reserve quest of the gentleman from Florida? greater risk, support a temporary solu- the balance of my time. The United There was no objection. tion and increase the economic and ra- States Supreme Court stated in Printz Mr. LIPINSKI. Mr. Speaker, I ask cial divide in Chicago when there is a versus United States decision in 1997 unanimous consent to give the gen- better way of resolving the current that dual sovereignty is incontestable, tleman from Illinois (Mr. JACKSON) an aviation capacity crisis? to preemp State law, that is, the Illi- additional 10 minutes, the gentleman O’Hare Airport is the economic mag- nois Aeronautics Act, and give power from Florida (Mr. MICA) an additional net that provides jobs and economic se- to the city of Chicago and the city of 10 minutes, which his 10 minutes will curity for Chicago’s north side and Chicago’s ability to come directly to be split with 5 minutes for himself, 5 minutes for my side. northwest suburbs. Midway Airport, the Federal Government for the pur- The SPEAKER pro tempore. Is there housed in the gentleman from Illinois’ poses of expanding O’Hare airport. objection to the request of the gen- (Mr. LIPINSKI) district, is the economic The Printz versus United States deci- tleman from Illinois? magnet that provides jobs and eco- sion emphasized that that is a con- There was no objection. nomic security for Chicago’s southwest stitutional structural barrier to Con- Mr. JACKSON of Illinois. Mr. Speak- side. There is no similar economic en- gress intruding on a State’s sov- er, may I inquire as to how much time gine for Chicago’s south side and south ereignty, and this structural barrier we have remaining. suburbs. could not be avoided by claiming that The SPEAKER pro tempore. The gen- O’Hare expansion puts in 195,000 new constitutional authority was, A, pursu- tleman from Illinois (Mr. JACKSON) has jobs and $19 billion of economic activ- ant to the commerce power clause. We 221⁄2 minutes, the gentleman from Flor- ity in an area that already has an over- have heard the gentleman from Florida ida (Mr. MICA) has 141⁄2 minutes. There abundance. For example, the biggest (Mr. MICA) talk about the number of is 5 minutes reallocated to the gen- beneficiary of O’Hare is Elk Grove Vil- jobs and the fact this is a factor in our tleman from Illinois. lage, a city of 35,000 people where over economy. It will create 195,000 jobs, $19 Mr. LIPINSKI. Mr. Speaker, in the 100,000 people come to work every day. billion in economic activity pursuant additional time request, it would be 10 That is three jobs for every one person. to the commerce power. According to minutes for the gentleman from Illi- The greatest beneficiary of O’Hare, Printz versus the United States these nois (Mr. JACKSON), 10 minutes for the Mayor Craig Johnson of Elk Grove Vil- arguments are not available to the gentleman from Florida (Mr. MICA), lage, is one of the biggest supporters of chairman of the committee. which he automatically yields to me 5 Peotone. By contrast, some commu- The necessary and proper clause of minutes. So I should have 15 minutes nities in my district have 60 people for the Constitution, we have heard there at the present time. every one job. is an aviation capacity crisis, that this The SPEAKER pro tempore. The gen- Finally, it just so happens that the bill seeks to alleviate. According to the tleman is correct. areas where O’Hare and Midway Air- Printz versus the United States, Con- Mr. LIPINSKI. Mr. Speaker, I yield 2 ports are located are primarily where gress cannot use the necessary and minutes to the gentleman from Indiana whites live. African Americans live pri- proper clause argument as a basis for (Mr. VISCLOSKY). (Mr. VISCLOSKY asked and was marily south and in the south suburbs, preempting State law. but African American families need Last but not least, Printz versus the given permission to revise and extend economically stable families and com- United States said that the Federal law his remarks.) Mr. VISCLOSKY. Mr. Speaker, I munities that have a future and can preempted State law under the Su- thank the gentleman for yielding me send their children to college, too. We premacy Clause, that Congress can use the time. need greater economic balance in the its power to solve impasses, that Mr. Speaker, I rise today in strong Chicago metropolitan area so that all should be solved at the local level in support of H.R. 3479, the National Avia- of the people have jobs and economic the city of Chicago and in the State of tion Capacity Expansion Act, and security. Illinois. would point out that I believe one of The gentleman from Illinois (Mr. LI- In other words, Mr. Speaker, all of the reasons we are here today under PINSKI) says that 15 environmental the arguments that we have heard, in- suspension is a broad-ranging bipar- groups, including the Sierra Club, sup- cluding the arguments of my good tisan support that exists for this legis- port the language in this bill. He, of friend, the chairman, are all unconsti- lation today. course, is implying that they have en- tutional according to Printz versus the Whether we talk about a Democratic dorsed it. The gentleman from Illinois United States, and whether my col- mayor for the city of Chicago, whether (Mr. LIPINSKI) knows better. They have leagues agree with my constitutional a Republican governor of the State of not endorsed it. I also asked the gen- interpretation or not, because there is Illinois, whether we talk about the Illi- tleman from Illinois (Mr. LIPINSKI) to a legitimate constitutional interpre- nois Chamber of Commerce, or whether supply me with the names of the other tive disagreement that is taking place, we talk about the AFL–CIO, whether environmental groups who he says sup- this can only be solved in Federal we talk about the Republican or Demo- port the language in this bill, and he court, which means the idea of expand- cratic leadership of the Committee on has failed to do so. ing aviation capacity in northern Illi- Transportation and Infrastructure that O’Hare is already the largest polluter nois is likely to be tied up in the Fed- reported this bill to the Congress, one in the Chicago area. Doubling the num- eral courts for a number of years, and of the things that has been debated ber of flights into the 7,000 acres that therefore, we will not be expanding hotly about this legislation is the sta- houses O’Hare means pollution levels aviation capacity as the chairman and tus of the Peotone site in the State of will explode. A recent study found as the ranking member seek to do. Illinois. there was an excess of 800 new Therefore, Mr. Speaker, I urge my What I want to use my time today is incidences of cancer each year, over colleagues to reject this bill. It could to point out to Members of this body and above what would be expected be improved if it were brought in the that there are three airports involved, based on the State’s average, in eight regular order and amendments were al- O’Hare International Airport, an air- northeastern communities downwind of lowed to include the faster, cheaper, port in Rockford, Illinois, and the air- O’Hare. Peotone’s 24,000 acre site has a safer and cleaner proposal, building a port in Gary, Indiana, which is in my built-in environmental safety zone. third airport in Peotone. congressional district. There is a pro- Mr. Speaker, the O’Hare expansion Mr. Speaker, I reserve the balance of posed site in Peotone, Illinois. plan is obviously anti-consumer. Two my time. The gentleman from Illinois (Mr. airlines, American and United, control Mr. MICA. Mr. Speaker, I am pleased JACKSON) talked about a potential ra- 90 percent of the flights in and out of to yield 10 minutes to the gentleman cial divide on the Illinois side. I would

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00029 Fmt 4634 Sfmt 0634 E:\CR\FM\K23JY7.048 pfrm09 PsN: H23PT1 H5120 CONGRESSIONAL RECORD — HOUSE July 23, 2002 point out that Gary, Indiana’s popu- Mr. Speaker, we need the south sub- petrators, allergic to debate and lation is 85 percent African American, urban third airport at Peotone to ex- amendments? Well, let us be clear and for those African American citizen pand aviation capacity, and I believe about what this bill seeks to do. of Gary, Indiana, the passage of this by moving this legislation forward, we The establishment wants to nearly legislation is very important for their can move towards that goal. People double the capacity of what is now the economic future because they and their often ask what is the status of the con- world’s busiest airport, O’Hare Inter- surrounding environs have been deci- struction of the airport at Peotone. national, to accommodate 1.6 million mated because of the loss of manufac- Just recently, the FAA released their flights a year. Who is the establish- turing jobs. EIS approval of FAA record of decision ment? Well, people of substance in the b 1300 signing. They investigated and re- community: The major Chicago news- viewed seven proposed sites for a third papers, the Chamber of Commerce, the We have an existing airport at Gary, airport, and they said that the Peotone mayor of Chicago, the governor of Illi- Indiana, just as there is one at Rock- site is the best one. They gave their nois, United Airlines, American Air- ford. One of the things that the leaders blessing for the State to continue mov- lines, and so many more that a famous on the committee took great pains to ing forward with what we call land President once labeled the malefactors do was to ensure that both of those air- banking, and the State legislature and of great wealth the establishment. ports, as well as the proposed Peotone the governor have made the decision to Members know who they are. They site, are all treated equally. Given that move forward to acquire 4,000 acres of have been besieged by their lobbyists. equity that exists in this bill for those the 24,000 eventually needed for the Who is the opposition? Thousands of two airports and that proposed site, I citizens who live and work near the strongly urge support passage of this purpose of land banking. That is an im- portant step. We need to move this leg- airport and its present 900,000 flights a bipartisan legislation. year, whose quality of life will be shat- Mr. MICA. Mr. Speaker, I yield 3 islative process forward, and while I tered by doubling the capacity at minutes to the gentleman from Illinois am disappointed in this language, I O’Hare. Those families whose homes (Mr. WELLER), who has worked to pro- want to make it clear that I was will be condemned and bulldozed, tect the interests of the Peotone ex- strongly in opposition to this bill this pansion. past week, and should this bill come whose businesses will be plowed under (Mr. WELLER asked and was given back without the provisions that we as the airport expands. permission to revise and extend his re- need to build a south suburban third Members might say we cannot stand marks.) airport, I will just as strongly oppose it in the way of progress. Of course not. Mr. WELLER. Mr. Speaker, today I when it comes back from the con- But O’Hare is landlocked. It is sur- stand in support of this legislation. As ference. rounded by vital suburban commu- my colleagues know, I am very dis- Mr. KIRK. Mr. Speaker, will the gen- nities, many of which I represent. It is appointed in the drafting of this legis- tleman yield? saturated with aircraft. Add to capac- lation, particularly in regards to the Mr. WELLER. I yield to the gen- ity, yes, but do it by building another south suburban airport at Peotone. But tleman from Illinois. airport at Peotone, a modern one that I believe it is in the best interests to Mr. KIRK. Mr. Speaker, this is a cou- is environmentally friendly and can ex- move this process forward, particularly rageous decision by the gentleman. As pand in years to come. By the time the in the hope that in conference between a member of the committee and as a $15–20 billion, not $6 billion as they the House and Senate, we can improve supporter of Peotone, the gentleman propose, the $15–20 billion is spent on upon the language for Peotone. has engendered a lot of goodwill and O’Hare, it will be obsolete. Peotone can Air travel is expected to double in friendship when we complete the final be built faster and cheaper than ex- the next 10 to 15 years. We need to ex- legislation. My hope is that it will panding O’Hare. pand O’Hare, we need to build Peotone strongly reflect the full agreement, in- It makes sense economically and to accommodate the doubling of air cluding the gentleman’s provision on logistically; but the flaw in the oint- travel. As we know, expanding O’Hare Peotone. ment is Chicago would not own alone will not accommodate that Mr. WELLER. Mr. Speaker, I thank Peotone. Therefore, it must not sur- growth in aviation. We need a south the gentleman and urge Members to vive. suburban third airport at Peotone. join me in supporting this bill today. There are fundamental constitu- The governor and the mayor of Chi- Mr. JACKSON of Illinois. Mr. Speak- tional questions with this bill. In the cago have come to an agreement re- er, I yield 10 minutes to the gentleman first place, Chicago has no power or au- garding the construction of Peotone, as from Illinois (Mr. HYDE), the distin- thority to do anything unless that well as expansion of O’Hare, and this guished chairman of the Committee on power has been given to the city by the legislation does not fully reflect that International Relations. Illinois General Assembly. The city is a agreement, which has been the concern (Mr. HYDE asked and was given per- political subdivision of the State. It is that I have had. But I spoke with the mission to revise and extend his re- a creature of the legislature, and its governor yesterday personally, and he marks.) powers are defined and limited by the asked me to support this legislation so Mr. HYDE. Mr. Speaker, I hate to Illinois Municipal Code. The Illinois it can move forward and move towards disabuse the gentleman from Illinois Municipal Code contains the Illinois conference. In that spirit, I support (Mr. WELLER), but if this expansion Aeronautics Act which forbids anyone this legislation today. goes through, the gentleman will never from expanding any airport without a Let me take a moment to discuss the see Peotone. We will not need Peotone. certificate of approval from the Illinois importance of the south suburban third We will have all of the capacity that is Department of Transportation. The airport at Peotone. The south suburban needed, 1.6 million airplanes. So while same limitation applies to the gov- third airport at Peotone will be a com- the gentleman from Illinois (Mr. ernor. The deal he made with the city plement to O’Hare. And I will note that WELLER) hopes and prays that some to expand O’Hare is what the lawyers while they are pouring concrete and agreement that has been made off the call ultra vires, beyond his authority. ripping up concrete, it is difficult to record will guarantee some favorable Neither the Federal Constitution nor land airplanes, so we need a third air- treatment of Peotone, the best medical the State constitution gives the gov- port to serve while O’Hare is expanded advice I can give to the gentleman is ernor the authority to ignore the Illi- over the next 10 to 15 years. I would not to hold his breath. nois Aeronautics Act. note that the south suburban third air- I do not know about others, but I If President Bush were to enter into port can be constructed in 4 to 5 years. love a mystery; and this bill is as mys- an agreement with Commonwealth Edi- It can be constructed for $500–600 mil- terious as anything Agatha Christie son to build a nuclear plant in Illinois, lion, compared to $13 billion. And from ever wrote. his action would be ultra vires, without a local standpoint, for the 2.5 million of First of all, why is such a controver- a license from the Nuclear Regulatory us who reside within 45 minutes of the sial bill being brought under suspen- Commission. But that would require Peotone site, it will generate over sion? What a mystery. Why are the full disclosure, something woefully ab- 200,000 jobs. bill’s proponents, and I almost said per- sent from this O’Hare debate. Does

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00030 Fmt 4634 Sfmt 0634 E:\CR\FM\K23JY7.051 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5121 anyone supporting this bill think the whose homes and businesses are going I do not believe that this necessitates President has constitutional authority to be wiped out. I do not know how the the idea that there cannot and will not to enter into an agreement with Exxon Democrats will explain that. be a third airport at Peotone, or in to drill in the Alaskan National Wild- This bill is wired. I know it. I can that area. As the time continues to de- life Refuge without statutory author- count. But I would rather be on the los- velop, the need will continue to grow. ity from Congress? ing side of a good, honest cause than on Right now, though, the greatest need is The Illinois Aeronautics Act requires the winning side of a cause that hurts to expand O’Hare, and I think we will a certificate of approval from the De- vulnerable people. get to Peotone as time comes. partment of Transportation. The city A famous Russian writer whose name Mr. MICA. Mr. Speaker, I am pleased and the governor proposed to march I never knew once wrote that even if to yield 2 minutes to the gentleman ahead, ignoring the law, all to give the the whole world was paved over, some- from Illinois (Mr. MANZULLO). city an unfettered right to condemn all where a crack would appear, and in Mr. MANZULLO. Mr. Speaker, the the land they want, sidestepping the Il- that crack a blade of grass would begin National Aviation Capacity Expansion linois law. to sprout. Act is not just a bill about expanding Now let us consider another mystery So bring on the bulldozers, the ce- O’Hare International Airport, it is in this bill. The governor and the ment mixers and shovels, and the 1.6 about relieving congestion for the en- mayor should just ask the Department million roaring airplanes. That blade tire air transportation system in the of Transportation for a certificate of of grass is the rule of law, and this United States, of which obviously approval. It is the Illinois DOT. The fight is far from over. O’Hare is an integral part. governor has peopled it and appointed Mr. LIPINSKI. Mr. Speaker, I yield 3 I fought hard and testified several its chairman. They should just ask minutes to the gentleman from Illinois times to make sure this bill includes a provision asking the FAA to consider that body for a certificate of approval. (Mr. DAVIS). If that is what is keeping them from (Mr. DAVIS of Illinois asked and was utilizing existing airports that are ca- complying with the law, why not just given permission to revise and extend pable of immediately reducing conges- apply for a certificate? his remarks.) tion and delays at our Nation’s major I asked my dear friend, the gen- Mr. DAVIS of Illinois. Mr. Speaker, airports. In the Chicago region, that tleman from Illinois (Mr. LIPINSKI), at the issue of expansion at O’Hare has airport is the Greater Rockford Air- least twice why they have not just been around for a long time and there port. Passage of this legislation en- sures that Rockford Airport will be asked for a certificate. It is so simple. has been considerable debate. I want to able to offer its vast resources, which The gentleman says he does not know. commend the gentleman from Illinois include: It is a real mystery. (Mr. LIPINSKI) for his leadership on not Well, it finally dawned on me like a $150 million of recent infrastructure only this issue, but other issues sur- improvements; a 10,000-foot runway ton of fire appearing over my head why rounding transportation. Today I stand this circuitous route around Illinois that can land any jet aircraft today as in firm support of H.R. 3479. well as an 8,200-foot runway; a category law is being employed: To get a certifi- I also want to commend the gen- cate of approval, they would have to III Instrument Landing System; a Gly- tleman from Illinois (Mr. HYDE) for his col Detention and Treatment Facility; disclose what their real plan is. That is efforts to bring a third airport in the the last thing that they want to do. an upgraded taxiway system; an FAA Peotone area. Especially, though, I 24-hour traffic control tower; it is the Transparency is not in their vocabu- want to commend the gentleman from lary. To apply for a certificate, they present home to United Parcel Serv- Illinois (Mr. JACKSON) for his con- ice’s second largest hub in the Nation; would have to disclose how much this sistent and eloquent, creative approach a modern passenger terminal imme- alleged $6.5 billion plan will really to try and develop jobs and economic diately capable of handling 1 million cost. How is it going to be financed? opportunity and bring them closer to emplaned passengers annually, and Who is going to pay the bonds? Will the people in his congressional district. room for 3 million with a modest in- they be paid for by United and Amer- Chicago has a vast and growing vestment, and capacity for up to 15 ican Airlines after they get their share transportation industry. Over the million passengers a year; uncon- of the airline bailout? How many acres years, Chicago O’Hare International strained airspace; the ability to relieve do they really plan to condemn? How Airport has continued its growth in up to 20 percent of O’Hare’s originating many homes do they really plan to traffic and demand. passengers; and all only 1 hour’s dis- plow under? Does this expand the b 1315 tance from Chicago. United-American monopoly existing at As my colleagues can see, this bill is Presently, O’Hare ranks as the Na- O’Hare now? So many questions they the best vehicle by which the Nation’s would have to disclose, and not to dis- tion’s first or second busiest airport at air traffic congestion and delays could close them is why they are ignoring any given time, with nearly 34 million be relieved. And Rockford Airport is the law. That is why we should not let annual passengers traveling both do- ready today; built, paid for, existing. It them. mestically and internationally. is considered, as designated in this leg- How much corporate welfare are they Expanding O’Hare offers an imme- islation, to be a low-cost and conven- concealing? What are they hiding? This diate array of benefits, from employ- ient factor in that solution. is like Enron or WorldCom. What was ment to economic growth. And I am I urge my colleagues to vote in favor wrong with them, they did not disclose pleased to note that the plan for of this bill. the true state of affairs in their cor- O’Hare expansion includes a 30 percent Mr. JACKSON of Illinois. Mr. Speak- poration, and we have tired fingers goal for minority and women-owned er, I yield 2 minutes to the gentleman pointing at Enron and Arthur Andersen businesses as opposed to a 10 percent from Illinois (Mr. CRANE). and WorldCom. Well, that is what we goal in the State’s plan for Peotone. (Mr. CRANE asked and was given are doing today. We are giving Amer- As Chicago continues to grow, O’Hare permission to revise and extend his re- ican and United and the city of Chicago continues to experience the backlog of marks.) and the governor a pass on the law hav- delays. According to the Airport Ca- Mr. CRANE. Mr. Speaker, I thank ing to disclose what this plan, this pacity Benchmark Report in 2001, the gentleman for yielding me this massive plan is all about. O’Hare was the third most delayed air- time, and, once again, I rise in strong Do we encourage nondisclosure? Are port. Sitting in the heart of the Mid- opposition to Federal legislation that we now accessories? Listen, Repub- west, these delays continue to burden would mandate runway expansion and licans are always given the image of connecting airports, creating a snow- reconfiguration at Chicago’s O’Hare being in bed with big business and ball effect and frustrating passengers. Airport. Democrats march beside the little guy, By the addition of runways, and the ex- Like most people, I want the air traf- the powerless. Well, this vote, if Mem- pansion of O’Hare, delay times will di- fic congestion problem at O’Hare bers vote yes on this bill, they validate minish and air travel at Chicago’s bus- solved as soon as possible, but the plan that they are in bed with big business, tling O’Hare will undoubtedly improve mandated by this bill will not accom- and the heck with the little people for the consumer and the region. plish that objective. It is projected to

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00031 Fmt 4634 Sfmt 0634 E:\CR\FM\K23JY7.056 pfrm09 PsN: H23PT1 H5122 CONGRESSIONAL RECORD — HOUSE July 23, 2002 take 900,000 flights annually to 1.6 mil- (Mr. CRANE) had 2 minutes. That Mr. OBERSTAR. Reclaiming my lion flights annually. Moreover, it should leave me 10 minutes, Mr. Speak- time, Mr. Speaker, I believe there were would be expensive. Very expensive. Its er. two hearings sponsors say the O’Hare runway plan The SPEAKER pro tempore. The gen- Mr. HYDE. If the gentleman will con- will cost $6.6 billion to implement, but tleman from Illinois (Mr. HYDE) used 9 tinue to yield, Mr. Speaker, it is my by the time the 500 to 600 property con- of the 10 minutes, which is 81⁄2 minutes understanding that mayors whose demnations, the two graveyard reloca- remaining, before yielding to the gen- towns are going to be affected by this, tions, road improvements, sound- tleman from Illinois (Mr. CRANE) 2 and citizens and businessmen were here proofing work, and other items are fin- minutes, and that leaves 61⁄2 minutes. and were not permitted to testify. Is ished, the price tag is likely to be dou- Mr. JACKSON of Illinois. I thank the that the gentleman’s recollection? ble or triple that amount. Speaker. Mr. OBERSTAR. That is not my un- Meanwhile, there are four good-sized Mr. LIPINSKI. Mr. Speaker, just so derstanding. All that I know who re- airports currently in operation within we are perfectly clear, I have 10 min- quested the hearing were accommo- less than a 100-mile radius of Chicago, utes remaining? dated. I am not aware of such. But at Great Rockford Airport being one, that The SPEAKER pro tempore. The gen- any rate, I have only limited time and could handle additional flights, and a tleman has 10 minutes remaining. perhaps the gentleman can discuss this fifth could be built south of the city Mr. LIPINSKI. And the gentleman on his time with the gentleman from with less difficulty and for less money from Illinois (Mr. JACKSON) has 61⁄2 Illinois (Mr. LIPINSKI). than it would take to add to and recon- minutes remaining. Mr. HYDE. We can do this off the figure the runways at O’Hare. Making The SPEAKER pro tempore. The gen- record, yes. greater use of these airports would be a tleman has 61⁄2 minutes remaining. Mr. OBERSTAR. Mr. Speaker, it is quicker, simpler, and less expensive op- Mr. LIPINSKI. And what does the cities, more than States, that have ad- tion than trying to expand O’Hare’s gentleman from Florida (Mr. MICA) vanced the cause of aviation in the runway capacity. have remaining? United States. Until 1958, there were Also, it would spare thousands of The SPEAKER pro tempore. The gen- only 7 States that provided any support people living and/or working near tleman from Florida has 91⁄2 minutes financially for airport construction and O’Hare the consequences of higher remaining. development. In the 1940s, Chicago’s noise and air pollution levels, declining Mr. MICA. Mr. Speaker, just for the city council looked into the crystal property values, and, in some cases, information of the House and the ball, saw the future of aviation and had the loss of their homes and their jobs. Speaker, I plan to use only 3 minutes the foresight to acquire orchard fields For their sakes, and for the sake of of that time because the House does and an additional 7,000 acres to build others who live or work in places that want to proceed with other business. this treasure of an airport, O’Hare, could suffer a similar fate in the fu- Mr. LIPINSKI. Mr. Speaker, I yield 5 that was named for a World War II ture, I urge my colleagues to vote ‘‘no’’ minutes to the gentleman from Min- hero. on this counterproductive and poten- nesota (Mr. OBERSTAR), the ranking Similarly, LaGuardia was the brain- tially precedent-setting piece of legis- member of the Committee on Trans- child of Mayor Fiorello LaGuardia, lation. We can and should do better. portation and Infrastructure, a long- who sought to capitalize on the great Mr. LIPINSKI. Mr. Speaker, may I time chairman of the Subcommittee on success of Newark Airport, and built inquire about the amount of time ev- Aviation. what was then a treasure on the East eryone has left here? Mr. OBERSTAR. Mr. Speaker, I Coast. And the same with Atlanta. The SPEAKER pro tempore (Mr. thank the gentleman for yielding me Hartsfield Airport was the vision of Al- SIMPSON). The gentleman from Illinois this time, and I rise in support of the derman and Mayor William Hartsfield. (Mr. LIPINSKI) has 10 minutes remain- National Aviation Capacity Expansion So we are now dealing with the need to ing, the gentleman from Illinois (Mr. Act of 2002, and I do so with greatest look into the future of aviation in the JACKSON) has 61⁄2 minutes remaining, respect and admiration for the gen- United States. and the gentleman from Florida (Mr. tleman from Illinois (Mr. LIPINSKI) who When traffic backs up at O’Hare, it MICA) has 91⁄2 minutes remaining. has labored mightily to bring together backs up all the way around the world. Mr. JACKSON of Illinois. I am sorry, the State of Illinois, the City of Chi- Delays at O’Hare affect traffic as far Mr. Speaker, my math is a little bit cago, and a wide range of interests in away as Frankfurt, in Europe, and different. Since the moment that you the House to support this initiative. Tokyo on the Pacific Rim. This legisla- yielded me and informed me I had 221⁄2 It is unfortunate that we have to do tion, and I have spent a great deal of minutes, I yielded 10 minutes to the this by legislation, but it is also unfor- time looking at the airport runway re- gentleman from Illinois (Mr. HYDE) and tunate that historically the City of configuration, will allow operations of 2 minutes to the gentleman from Illi- Chicago and the State of Illinois have all weather conditions, simultaneous nois (Mr. CRANE). not been able to work together con- operations. It will make possible si- The SPEAKER pro tempore. In the structively, with oftentimes the Gov- multaneous operations under all but gentleman’s request to yield 10 min- ernor’s office countermanding an the very worst zero visibility condi- utes to the gentleman from Illinois agreement worked out between the tions, and that would be a huge im- (Mr. HYDE), did the gentleman ask that Mayor and the Governor, as Mayor provement over the existing situation he control the time? Daley testified to so specifically in our at O’Hare. Mr. JACKSON of Illinois. I asked committee hearings last year and early There have been allegations about that he have 10 minutes. this year. the constitutionality of this legislative The SPEAKER pro tempore. And the I just want to point out that we are proposal. Last week, during debate, the gentleman from Illinois (Mr. HYDE) de- not talking about an ordinary airport. gentleman from Illinois (Mr. JACKSON) bated and then yielded back with one This is the premier airport in the and the gentleman from Illinois (Mr. minute remaining. United States. This is a treasure for all HYDE) made references to constitu- Mr. JACKSON of Illinois. Correct. of world aviation. There is no question tional issues in a letter written by Pro- And at the time I yielded 10 minutes to that we need to address the needs of fessor Ronald Rotunda of the Univer- the gentleman from Illinois (Mr. HYDE) O’Hare; that we, if necessary, as we do sity of Illinois College of Law. Well, we I had 221⁄2 minutes. in this legislation, in effect, codify an have got other experts and other pro- The SPEAKER pro tempore. Did you agreement between the Mayor and the fessors who have also reviewed this let- ask unanimous consent that the gen- State of Illinois. ter. We talked to Professor Thomas tleman from Illinois (Mr. HYDE) be able Mr. HYDE. Mr. Speaker, will the gen- Merrill, the John Paul Stephens Pro- to control 10 minutes? tleman yield? fessor of Law at Northwestern Univer- Mr. JACKSON of Illinois. I asked Mr. OBERSTAR. I yield to the gen- sity, to get his opinion, which con- that the gentleman from Illinois (Mr. tleman from Illinois. cludes as follows: HYDE) have 10 minutes, Mr. Speaker, Mr. HYDE. The gentleman had one ‘‘This legislation is squarely within and then the gentleman from Illinois hearing on this bill, did you not? the power delegated to Congress under

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00032 Fmt 4634 Sfmt 0634 E:\CR\FM\K23JY7.058 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5123 the commerce clause and relies on fa- State of Illinois. The plan would redesign the agement Ass’n, 505 U.S, 88, 108 (1992) (citation miliar precepts of preemption. It pre- runways, terminals and access roads at omitted). As the Court noted in Printz v. sents no substantial issue under the O’Hare so as to permit this facility, which is United States, 521 U.S. 898, 913 (1997)—one of anti-commandeering principle of U.S. vital to both the national and the regional the decisions Professor Rotunda relies upon economy, to accommodate the existing and most heavily—‘‘all state officials’’ act under v. New York.’’ anticipated volume of commercial air traffic a duty ‘‘to enact enforce, and interpret state Mr. Speaker, I am submitting here- in the Chicago area. law in such as fashion as not to obstruct the with for the RECORD the memorandum In a letter to Representative Henry Hyde operation of federal law;’’ consequently, ‘‘all provided by Professor Merrill, and the dated March 1, 2002, Professor Ronald Ro- state actions constituting such obstruction, letter of agreement between the Gov- tunda of the University of Illinois Law even legislative Acts, are ipso facto invalid.’’ ernor of Illinois and the Mayor of the School has offered the opinion that the Dur- Indeed, ‘‘even state regulation designed to City of Chicago, testifying that they bin-Lipinski legislation is ‘‘most likely un- protect vital state interests must give way have reached an agreement and both do constitutional.’’ (Rotunda Letter at 16). The to paramount federal legislation.’’ De Canas provisions he finds constitutionally problem- v. Bica, 424 U.S. 351, 357 (1976). strongly support this legislation. atic are § 3(a)(3), which exempts the O’Hare The Durbin-Lipinski Legislation provides, STATE OF ILLINOIS, redesign project from state permitting re- among other things, that the State of Illi- CITY OF CHICAGO, quirements, and § 3(f), which, as it appears in nois ‘‘shall not enact or enforce any law re- July 22, 2002. the House bill, provides that if all state and specting aeronautics that interferes with, or DEAR MEMBER OF CONGRESS: We want to local approvals are not obtained by 2004, the has the effect of interfering with, implemen- unequivocally state our strong support for project shall proceed as a federal project. tation of Federal policy with respect to the Representative Bill Lipinski and Mark These provisions are constitutionally sus- runway redesign plan including 38.01, 47, and Kirk’s legislation, H.R. 3479, the National pect, according to Professor Rotunda, be- 48 of the Illinois Aeronautics Act.’’ H.R. 3479, Aviation Capacity Expansion Act of 2002, cause they ‘‘conscript the instrumentalities § 3(a)(3). This provision is obviously incon- which is expected to be on the House Cal- of state government and state power as tools sistent with any requirement for state cer- endar this week. of federal power,’’ do not constitute ‘‘gen- tification of the O’Hare redesign plan under This legislation is crucial to the agree- erally applicable’’ legislation, and ‘‘impose[ ] § 47 of the Illinois Aeronautics Act or other- ment that we, as Governor of Illinois and federal rules on the relationship between a wise. Any such state certification require- Mayor of Chicago, reached to end decades of city and the State that created the city.’’ ment is therefore plainly pre-empted by the debate over the future of airports in the Chi- (Letter at 16.) I have reviewed the authori- Durbin-Lipinski Legislation. cago area. That debate has choked off nec- ties and arguments advanced by Professor essary improvements to airport capacity in II. THE DURBIN-LIPINSKI LEGISLATION DOES NOT Rotunda and conclude that they raise no the region, and led to display and congestion ‘‘COMMANDEER’’ THE STATE OR ITS OFFICIALS substantial question about the constitu- that have negatively affected the economy of Professor Rotunda concludes that the Dur- tionality of the proposed legislation. the region, and rippled through the national bin-Lipinski Legislation is ‘‘likely unconsti- aviation system. It is time to end that de- I. THE DURBIN-LIPINSKI LEGISLATION REP- tutional’’ primarily by relying on decisions bate and move forward. RESENTS AN EXERCISE OF CORE FEDERAL holding that the Commerce Power does not Passage of this legislation is necessary for POWERS UNDER THE COMMERCE CLAUSE AND extend to laws that ‘‘compel the States to us to carry out this agreement, which will PRE-EMPTS CONTRARY STATE LAW enact or administer a federal regulatory pro- lead to reconfiguration of the runway system No claim has been made by Professor Ro- gram,’’ New York v. United States, 505 U.S. at O’Hare, the reduction of delays, and the tunda, nor could it be made, that the Durbin- 144, 188 (1992), or that ‘‘conscript the States’ creation of almost 200,000 new jobs in Illi- Lipinski Legislation deals with a subject be- officers directly’’ to administer or enforce nois. It will help improve the operations of yond the scope of Congress’s authority under federal law. Printz, supra, 521 U.S. at 935. He the entire system, reducing delays around the Commerce Clause. The Supreme Court, argues that the Durbin-Lipinski Legislation the nation. in reviewing the historical understanding of has the effect of ‘‘commanding and singling The agreement also includes going ahead the Commerce Power, has recently summa- out the State of Illinois to, in effect, repeal with work on the development of a new air- rized that Power as falling into three general its legislation governing the powers dele- port in the southern suburbs of Chicago, categories: (1) regulation of the channels of gated to the City of Chicago.’’ (Letter at 14.) which has been a great importance to not interstate commerce, (2) regulation of the The short answer to this elaborate argu- only the State of Illinois, but to many mem- instrumentalities of interstate commerce, ment is that the Durbin-Lipinski legislation bers of the Illinois delegation. Passage of and (3) regulation of commercial activity does no such thing. I does not require the this legislation is the best course of action that in the aggregate has a substantial affect State of Illinois or any political subdivision to help develop a third regional airport in on interstate commerce. See United States to enact—or repeal—any legislation. Nor the southern suburbs. v. Lopez, 514 U.S. 549, 558–59 (1995); United does it conscript state employees to act as Let us be clear: failure to pass this legisla- States v. Morrison, 529 U.S. 598, 609–09 (2000). administrators or enforcement agents of fed- tion will return us to the political gridlock The ‘‘channels of interstate commerce’’ in- eral law. Instead, the Durbin-Lipinski Legis- over airport issues in the Chicago region clude navigable rivers, interstate highways, lation simply preempts provisions of state that may take decades more to resolve. A interstate rail facilities and terminals—and law that might serve as an impediment to huge economic boost to the State of Illinois, of course navigable airspace and airport ter- the completion of the O’Hare redesign plan. to the Midwest and to the entire nation will minals. See, e.g., Braniff Airways, Inc. v. Ne- The State is not ordered to take affirmative be lost. braska State Bd. of Equalization, 347 U.S. steps to aid in the redesign of the airport, ei- We both strongly urge your favorable vote 590, 596 (1954) (‘‘Federal Acts regulating air ther by legislative or administrative action. on H.R. 3479. Thank you. commerce are bottomed on the commerce It is merely prohibited from blocking the re- GEORGE H. RYAN, power of Congress’’). Congress thus has com- design and reconfiguration of the airport. Governor. plete and plenary power under the Commerce This of course is what happens whenever RICHARD M. DALEY, Clause to regulate the size, configuration, state law is preempted by federal legislation. Mayor. and operating parameters of airport facili- See, e.g., City of Burbank v. Lockheed Air ties that serve as hubs of interstate air com- Terminal, Inc., 411 U.S. 624 (1973) (local ordi- MEMORANDUM merce. See, e.g., Northwest Airlines, Inc. v. nance governing hours of operation of air- To: R. Eden Martin, President, Civic Com- Minnesota, 322 U.S. 292, 303 (1944) (Jackson, port terminal pre-empted by comprehensive mittee of The Commercial Club of Chicago. J. concurring) (federal power over air com- federal regulation of airport noise). From: Thomas W. Merrill, John Paul Ste- merce and air transit is ‘‘exclusive’’). It fol- Absent some provision that directs Illinois vens Professor of Law, Northwestern Uni- lows from this that the Durbin-Lipinski Leg- to adopt legislation or regulations, or that versity. islation—which is designed to assure that commands Illinois officials or employees to Re: Constitutionality of the Durbin-Lipinski the Nation’s busiest airport terminal has enforce federal law, the Durbin-Lipinski Leg- Legislation. sufficient capacity to accommodate future islation raises no issue under New York and Date: April 17, 2002. growth in interstate and international air Printz. As the Supreme Court recently (and This memorandum is in response to your commerce—falls squarely within the core of unanimously) held in Reno v. Condon, 528 request for an evaluation of the constitu- congressional power under the Commerce U.S. 141 (2000), where a federal statute does tionality of the National Aviation Capacity Clause. not require a state legislature ‘‘to enact any Expansion Act, proposed federal legislation Given that the Durbin-Lipinski Legislation laws or regulations’’ and does not ‘‘require introduced in the Senate by Senator Durbin is within Congress’s power to legislate, any state officials to assist in the enforcement of (S. 2039) and in the House by Representative contrary provision of state law is pre- federal statutes regulating private individ- Lipinski (H.R. 3479) (the Durbin-Lipinski empted. ‘‘[U]nder the Supremacy Clause, uals,’’ the anti-commandeering doctrine of Legislation). This legislation is designed to from which our pre-emption doctrine is de- New York and Printz does not apply. Id. at facilitate the redesign of Chicago’s O’Hare rived, ‘any state law, however clearly within 151. Condon involved a federal statute, The International Airport in accordance with a a State’s acknowledged power, which inter- Driver’s Privacy Protection Act, that pro- plan agreed to by Mayor Richard Delay of feres with or is contrary to federal law, must hibited States from disclosing personal in- Chicago and Governor George Ryan of the yield.’’ Gade v. National Solid Waste Man- formation about individuals obtained from

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00033 Fmt 4634 Sfmt 0634 E:\CR\FM\K23JY7.080 pfrm09 PsN: H23PT1 H5124 CONGRESSIONAL RECORD — HOUSE July 23, 2002 department of motor vehicle records without Properly understood, therefore, the gen- that all in lieu payments be allocated in the the individual’s consent. Because the Act did erally applicable laws exception has no rel- same ratio as the county’s general tax reve- not direct the ‘‘States in their sovereign ca- evance to the Durbin-Lipinski Legislation. nues were allocated. By a vote of 7–2, the Su- pacity to regulate their own citizens,’’ id., The Durbin-Lipinski Legislation does not preme Court held that the federal statute the Court found that it was a legitimate ex- compel the State to enact any laws or regu- preempted the allocation requirement in the ercise of the Commerce Power and that con- lations, and does not conscript state employ- state statute, and specifically rejected the trary state legislation was preempted. The ees to administer any federal law. Instead, it contention based on the language in Hunter Durbin-Lipinski Legislation likewise con- is a narrow preemption statute. As such, the that this constituted impermissible tains no provision that would compel the anti-commandeering principle of New York interfence with state control over its polit- State or its agents to regulate the citizens of and Printz does not apply at all, and hence ical subdivisions, Id. at 269; cf. id. at 270–71 Illinois. the generally applicable laws exception does (Rehnquist, J. dissenting (quoting Hunter)). Nor does the provision of the House bill not apply at all. The same conclusion has been reached that calls for the O’Hare redesign to become Outside the commandeering context, there when the federal government has given regu- a federal project if construction has not com- is no principle of law that condemns congres- latory permission to political subdivisions to menced by 2004 raise any commandeering sional legislation under the Commerce take action contrary to state law. In one problem. This is a form of conditional regu- Clause because it proceeds project-by-project case the Federal Power Commission issued a lation, in which Congress ‘‘offer[s] States the rather than under generally applicable laws. license to the City of Tacoma, Washington, choice of regulating [private] activity ac- Congress has often legislated under the Com- to build a hydroelectric dam on the Cowlitz cording to federal standards or having state merce Clause by addressing particular ob- River. An agency of the State of Washington law pre-empted by federal regulation.’’ New structions of commerce, whether they be in- opposed the license, and argued that Wash- York, 505 U.S. at 167. This type of condi- adequate harbor facilities, impassive on riv- ington statutes required the City to obtain tional regulation is often used in environ- ers, or bottlenecks in the interstate highway permission from the State. The United mental legislation, and the New York Court system. For example, Congress has legislated States Court of Appeals for the Ninth Circuit took pains to reaffirm its constitutionality. with respect to a single bridge spanning a held that the case presented a simple matter Id; see also Printz, 521 U.S. at 925–26. Such navigable river, and this has been sustained of federal supremacy: State law cannot condition regulation, the Court found, is as a valid exercise of the Commerce Power. interfere with the ability of a federal li- constitutionally permissible because it does See Pennsylvania v. Wheeling and Belmont censee to exercise the rights provided by a not represent direct coercion of State gov- Bridge Co., 59 U.S. (18 How.) 421, 431 (1855). federal license on a navigable waterway. ernments in the way that commandeering Similarly, federal agencies exercising dele- State of Washington Dept. of Game v. Fed- does. Section 4(f) of the House bill is of a gated power under the Commerce Clause, eral Power Comm., 207 F.2d 396 (9th Cir. 1953). similar design. It provides that in the event such as the Army Corps of Engineers and the The court agreed that the City was a crea- the Administrator of the FAA finds that ‘‘a FAA, commonly and properly focus their at- ture of the State and normally could not act continuous course of expected to commence tentions on particular obstructions of com- without authorization of state law. But pri- by December 1, 2004’’ then ‘‘the Adminis- merce, rather than proceeding by promul- vate licensees—such as corporations and electrical cooperatives—are also creatures of trator shall construct the runway redesign gating general regulations. That is all Con- state law, and it is well-established that plan as a Federal project.’’ H.R. 3479, § 4(f). gress has done here, by legislating to assure they can invoke federal law to preempt state The legislation, in other words, does not that a critical airport that serves as a cen- law inconsistent with a federal license. See order State and local officials to issue per- tral hub of the entire air traffic system of First Iowa Hydro-Electric Coop. v. Federal mits and approvals for construction; it sets a the United States does not become an im- Power Comm., 328 U.S. 152 (1946). The court deadline for obtaining such approvals, and if pediment to the free flow of interstate and this is not met, provides for federal permits reasoned that municipal corporations are no international commerce. and approvals—a classic form of conditional different in this regard, and they too may be regulation approved by New York and IV. THE DURBIN-LIPINSKI LEGISLATION DOES empowered by the federal government to Printz. NOT IMPERMISSIBLY INTERFERE WITH RELA- take action affecting the channels of inter- TIONS BETWEEN A STATE AND ITS POLITICAL III. THE DURBIN-LIPINSKI LEGISLATION IS NOT state commerce without regard to limita- SUBDIVISIONS CONSTITUTIONALLY INFIRM BECAUSE IT AP- tions contained in state law. The Wash- PLIES TO A SINGLE AIRPORT Finally, Professor Rotunda suggests in ington Supreme Court later disagreed with passing (Letter at 7) that the Durbin-Lipin- Professor Rotunda also seeks to rely on this ruling, see City of Tacoma v. Taxpayers language in New York and Condon that dis- ski legislation violated some general prin- of Tacoma, 307 P.2d 567 (Wash. 1957), but the tinguishes impermissible commandeering ciple of federalism that requires Congress to U.S. Supreme Court reversed, holding that statutes from laws ‘‘that subject state gov- afford a state government complete and un- the decision of the Ninth Circuit was res ju- ernments to generally applicable laws.’’ New limited control over the powers and duties of dicata. See City of Tacoma v. Taxpayers of York, 505 U.S. at 160; Condon, 528 U.S. at 151. its political subdivisions. The decision he Tacoma, 357 U.S. 320 (1958). He notes that the Durbin-Lipinski Legisla- cites in support of this proposition, Hunter Similiarly, in a controversy closely analo- tion applies to only one airport and in this v. City of Pittsburgh, 207 U.S. 161 (1907), held gous to the instant matter, the City of New sense is not a ‘‘generally applicable’’ law, no such thing. Instead, the Court merely re- Haven, Connecticut received a $750,000 grant thus, he suggests, the legislation is unconsti- jected the claim of the City of Pittsburgh from the Federal Aviation Administration tutional under New York and Prinitz. that a Pennsylvania law directing the annex- for extension of an airport runway. Pursuant This argument, however, reflects ation of Pittsburgh and another city over to agreements between the City and the misapplication of the ‘‘generally applicable the objection of a majority of the Pittsburgh FAA, the City was required to purchase land laws’’ exception recognized in New York and electorate violated Pittsburgh’s rights under in the neighboring town of East Haven in Condon. The exception applies only to fed- Fourteenth Amendment’s Due Process order to provide an expanded ‘‘clear zone’’ eral laws that otherwise compel a State to Clause. It was in this context that the Court for takeoffs and landings. When neighbors enact legislation or conscript state employ- said that the ‘‘number, nature, and duration objected and instituted actions in state ees to enforce federal law. If a federal law of the powers conferred upon’’ a municipal court seeking to block the project on the has this ‘‘commandeering’’ effect, then it corporation ‘‘rests in the absolute discretion ground that New Haven’s purchase of land in may nevertheless be upheld as constitutional of the state.’’ Id. at 178. No issue was pre- East Haven violated state law, the United if it is a ‘‘generally applicable law’’ that ap- sented in the case about the authority of States sought and obtained a preliminary in- plies to state governments and private per- Congress to deal directly with municipal cor- junction against further state-court litiga- sons alike. Thus, for example, the Fair Labor porations—as it often deals directly with tion. In affirming the injunction, the United Standards Act (FLSA), as amended, applies other types of corporations—in the imple- States Court of Appeals for the Second Cir- to state and local governments as well as to mentation of otherwise valid federal legisla- cuit observed that ‘‘[i]n the case of a clash private employers. This statute requires tion. between federal legislation and state orders state governments to enact laws or regula- In fact, Congress has long dealt directly in the area of air commerce, it is clear that tions (e.g., setting wages and hours of state with municipalities in a variety of contexts, under the doctrine of federal supremacy and employees), and it requires state officers and and the federal courts have uniformly re- the commerce clause’’ the United States employees to administer federal law (e.g., de- jected challenges to these measures based on would likely prevail on the merits. See termining that all units of state government the notion that the federal government must United States v. City of New Haven, 447 F.2d are in compliance with federal standards). always defer to state-law limitations on mu- 972, 973–74 (2d Cir. 1971) (citations omitted). Yet the constitutionality of the FLSA as ap- nicipal powers. Lawrence County v. Lead- There are, to be sure, constitutional ques- plied to state governments was upheld in Deadwood School District, 469 U.S. 256 (1985), tions about how far the federal government Garcia v. San Antonio Metropolitan Transit for example, involved a federal statute that may go in bypassing state governments and Auth., 469 U.S. 528 (1985). The Court in New provided payments in lieu of taxes to a coun- dealing directly with municipalities and York reconciled this result with the anti- ty based on the presence of tax-exempt fed- other subdivisions of a State. The Wash- commandeering principle by noting that the eral land in the county. The federal statute ington Supreme Court in the Tacoma dam FLSA is a generally applicable law that gov- gave the county discretion to allocate funds controversy thought that the federal govern- erns state and private employers alike. New for ‘‘any governmental purpose.’’ Id. at 258. A ment could not confer the power of eminent York, 505 U.S. at 160–61. South Dakota statute, however, provided domain on a municipality in circumstances

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00034 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.026 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5125 where such power is not given by state law. Mr. JACKSON of Illinois. No, sir. No, Mr. JACKSON of Illinois. Mr. Speak- City of Tacoma, 307 P.2d at 576–78, rev’d on sir, I did not yield 5 minutes to the er, I have not often come to the floor of other grounds, 357 U.S. 320. And although the gentleman from Illinois (Mr. LIPINSKI). this Congress to talk about the racial Supreme Court has held that a federal dis- divide in the city of Chicago; but when trict court in implementing a desegregation b 1330 I do, it is very serious business because decree may issue an order pre-empting state The time of the gentleman from Illi- tax limitations in order to permit a city to I do not want to take lightly the impli- nois (Mr. LIPINSKI) is controlled by the cations of what Members of Congress raise taxes, it has reserved judgment as to chairman, sir. I am in opposition to the whether it would be constitutional for such a are going to vote on today. This bill bill. They divided time amongst them- court directly to order a city to raise taxes. will greatly exacerbate what the New selves. Ten minutes additional on each Missouri v. Jenkins, 495 U.S. 33, 50–51 (1990). York Times has referred to as the most side, sir, should have left me with 221⁄2 But the Durbin-Lipinski Legislation raises segregated city in Chicago. I guess, Mr. minutes. I yielded 10 minutes to the none of these unresolved questions. Section Speaker, I want to draw the relation- 3(a)(3) in both bills simply pre-empts state gentleman from Illinois (Mr. HYDE), certification requirements that might act as and I yielded 2 minutes to the gen- ship with this chart between those comments and what the demographic an impediment to the City’s execution of the tleman from Illinois (Mr. CRANE), redesign plan using its otherwise-existing which should leave me with 10 minutes. shifts are actually showing in Chicago. delegated and home-rule powers under state The SPEAKER pro tempore (Mr. When John F. Kennedy inaugurated law. And § 3(f) of the House bill provides that SIMPSON). The gentleman did not make O’Hare Airport in the early sixties, you if the O’Hare redesign project becomes a fed- a unanimous consent request that the see that the center of economic activ- eral project, either the City will exercise its ity in this first map is in central down- existing eminent domain power or the FAA gentleman from Illinois (Mr. LIPINSKI) will use its federal eminent domain power to control 5 minutes? town Chicago. As a result of O’Hare acquire needed land. See H.R. 3479, § 3(f)(1) Mr. JACKSON of Illinois. No, sir. The Airport and our economy moving from (E) & § 3(f)(3). Nor is there any suggestion in gentleman from Illinois (Mr. LIPINSKI) an industrial-based economy to a serv- this bill that Congress has authorized the made a unanimous consent request ice-based economy, we see tremendous City to exercise powers of taxation beyond that 10 minutes be increased on each economic growth by 1980 in the north- those it already enjoys under state law. See side and there was no objection, 10 western suburban area. In the mean- id. § 3(f)(1)(F) (‘‘the costs of the runway rede- minutes for that side and I am the time, the south side of Chicago and the sign plan will be paid from the sources nor- other side. south suburbs is experiencing zero to mally used for airport redevelopment The SPEAKER pro tempore. The negative growth. projects of similar kind and scope’’). Chair will subtract 5 minutes from the CONCLUSION By 1990, O’Hare Airport, well into Du gentleman from Illinois’s (Mr. LIPIN- Page County, Kane County, McHenry The Durbin-Lipinski Legislation is square- SKI) side that apparently the gen- ly within the power delegated to Congress County, and Lake County, Illinois, end tleman from Illinois (Mr. JACKSON) did up being responsible, for every three under the Commerce Clause and relies on fa- not yield to him, which means that the jobs that exist in our area, three of miliar precepts of pre-emption. It presents gentleman from Illinois has no time re- no substantial issue under the anti-comman- them can be found in the northwestern deering principle of United States v. New maining. Mr. LIPINSKI. How much time do I suburbs per one person. Under a build York and Printz v. United States. Nor does it scenario for the south suburban air- attempt to intrude upon State-municipality have? The SPEAKER pro tempore. The gen- port, which is why I am here, the Sec- relations in a manner that is constitu- ond Congressional District of Illinois tionally problematic. The proposed legisla- tleman has no time remaining now. tion addresses a matter of vital national im- Mr. LIPINSKI. That is not right, Mr. extends from 71st and Yates all the portance in a manner that is minimally in- Speaker. If I may say, before my 10 way to Will County, to the county line trusive to the legitimate interests of the minutes was used at all, my request and just beyond the county line. The State as sovereign, and is therefore fully was for an additional 10 minutes for south suburban airport under a 2020 constitutional. the gentleman from Illinois (Mr. JACK- build scenario allows the balancing of PARLIAMENTARY INQUIRY SON), an additional 10 minutes for the growth between the northwest subur- Mr. JACKSON of Illinois. Mr. Speak- gentleman from Florida (Mr. MICA), ban areas and the south suburban er, I feel compelled at this time to ask which he would yield 5 minutes to me, areas, with Chicago being the over- a parliamentary inquiry about my thereby giving me 15 minutes. whelming beneficiary of that balanced time. The reason I need to ask the par- To the best of my recollection, I gave economic growth. Without that air- liamentary inquiry is that there have 2 minutes to the gentleman from Indi- port, under a 2020 no-build scenario, been three speakers for those of us who ana (Mr. VISCLOSKY), 3 minutes to the south Cook County becomes increas- have been opposed to the legislation. gentleman from Illinois (Mr. DAVIS), ingly reliant upon government serv- The debate began with 20 minutes on and 5 minutes to the gentleman from ices, welfare, various forms of section 8 each side, and then there was a unani- Minnesota (Mr. OBERSTAR). That is 10 housing, and other programs. mous consent for an additional 10 min- minutes, which means I have 5 minutes And so when we debate aviation ca- utes, which should have left me with 30 remaining. pacity and the opportunity to expand minutes on my side and 30 minutes on The SPEAKER pro tempore. Let the aviation in northeastern Illinois and the other side of this legislation. I have chair get this straight. build an airport on the south side of yielded 10 minutes to the gentleman The gentleman’s 5 minutes was taken Chicago and the south suburbs, Mr. out of the gentleman from Florida’s from Illinois (Mr. HYDE), and you said Speaker, it is our goal to solve a long- (Mr. MICA) time. Of the 10-minute ex- he spoke for 91⁄2 minutes and yielded standing problem. Consistent with the pansion, 5 went to the gentleman from back the balance of his time. I yielded gentleman from Indiana (Mr. VIS- Illinois (Mr. LIPINSKI), 5 went to the 2 minutes to the gentleman from Illi- CLOSKY), I too support modernization gentleman from Florida (Mr. MICA), nois (Mr. CRANE), and I made an open- at Gary Airport. I do support mod- and 10 went to the gentleman from Illi- ing statement. ernization at Rockford Airport. But, nois (Mr. JACKSON). Mr. Speaker, the deal between the Gov- I do not know how long my opening Mr. LIPINSKI. Correct. statement was, but I do not believe it The SPEAKER pro tempore. The gen- ernor of the State of Illinois and the 1 2 mayor of the city of Chicago was to left me 6 ⁄ minutes. tleman from Florida (Mr. MICA) has 41⁄2 The SPEAKER pro tempore. The gen- minutes remaining, the gentleman add priority status to the building of a south suburban airport in Peotone, Illi- tleman from Illinois (Mr. JACKSON) from Illinois (Mr. JACKSON) has 111⁄2 made an opening statement of 71⁄2 min- minutes remaining, and the gentleman nois. 1 utes, leaving 12 ⁄2 minutes. Thereon the from Illinois (Mr. LIPINSKI) has 5 min- This legislation does not reflect that time was expanded by 10 minutes per utes remaining. deal. That deal is better reflected by side, leaving the gentleman 221⁄2 min- Mr. JACKSON of Illinois. Mr. Speak- the Senate version of the bill offered by utes. The gentleman then yielded 5 er, I yield myself 43⁄4 minutes. Mr. DURBIN where the Peotone lan- minutes to the gentleman from Illinois (Mr. JACKSON of Illinois asked and guage is given priority status. And so (Mr. LIPINSKI), leaving him 71⁄2 min- was given permission to revise and ex- why the gentleman from Illinois (Mr. utes. tend his remarks.) LIPINSKI) stands here, my good friend,

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00035 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.030 pfrm09 PsN: H23PT1 H5126 CONGRESSIONAL RECORD — HOUSE July 23, 2002 and advocates that this bill is reflec- ability last Monday. No one is under- age airport development in southern tive of the deal but removes the pri- estimating their ability today. We have California communities that actually ority status that by 2020 will alleviate done the work that is necessary in want airport development. the racial, social and economic ten- order to expand O’Hare. We feel that it I urge my colleagues to support the sions that exist in our region is a fac- is necessary. CAP Act and oppose the expansion of tor is why some of us are so adamantly Last week, one of the Hispanic Mem- Chicago O’Hare and LAX. opposed to O’Hare expansion without bers voted against the bill because Mr. Speaker, I join this debate be- building this south suburban airport at some people were saying that Hispanics cause there is nothing worse than hav- least first and as a priority. were going to be hurt by this expansion ing the folks sit in Washington over- I agree that there must be some mod- of O’Hare. Today we have a commit- ride the people in local communities ernization at O’Hare Airport. I disagree ment of all of the Hispanic Members of and in the States, telling them what is that we must tear up five runways at this Congress to vote for the bill, in- best for them when in fact the people O’Hare and build an additional eight cluding myself, who is present today to have a right to make those decisions in runways at O’Hare Airport as the solu- vote for this bill. their own regions and in their own tion. This area already has sufficient We will not underestimate it. We communities. I respect the right of the economic activity and jobs. Bring jobs know the quality of your arguments people of the south side of Chicago to and growth to the south side of Chi- and the commitment that you have. talk about what is in the best interests cago that only a service-based economy Please understand that this is a gentle- of their area, of that region. If we are can build. men’s disagreement. We respect and sincere about not trying to override Mr. Speaker, it is not just about air- love you both very, very much. local control, we will not allow this to ports. With airports come Hyatt and Mr. JACKSON of Illinois. Mr. Speak- happen. I would ask my colleagues to please Hilton and Fairmont and UPS and Fed- er, I am honored to yield 31⁄4 minutes to eral Express and every other ancillary the distinguished gentlewoman from oppose H.R. 3479. Someday it may hap- business that requires moving cargo in California (Ms. WATERS), who has an pen to you in your area, in your region; and out of aviation facilities. Those issue at Los Angeles International Air- and you would not want the Federal jobs are badly needed not just in the port. Government to put its foot on your northwest suburbs. They are also need- Ms. WATERS. I would like to thank hand and tell you what you can or can- not do. ed on the south side of Chicago and in the gentleman from Illinois for yield- Mr. LIPINSKI. Mr. Speaker, could I the south suburbs. That is why bring- ing this time to me. have a breakdown on how much time ing this bill to the floor in regular Mr. Speaker, I rise to oppose H.R. 3479, the National Aviation Capacity everybody has left? order, allowing those of us who have The SPEAKER pro tempore. The gen- Expansion Act, which would expand been advocating for this bill and advo- tleman from Illinois (Mr. LIPINSKI) has cating for expansion of aviation capac- the size of Chicago O’Hare Inter- 41⁄2 minutes remaining, the gentleman ity in the regular order that we might national Airport and undermine the from Illinois (Mr. JACKSON) has 31⁄2 rights of States and local communities amend it and ensure that our interests minutes remaining, and the gentleman are protected is a factor is why we are to make decisions regarding local air- from Florida (Mr. MICA) has 41⁄2 min- port development. disappointed and many of us, namely utes remaining. myself I know for a fact, are going to O’Hare expansion would destroy ap- Mr. LIPINSKI. Mr. Speaker, I yield proximately 1,500 homes and exacer- vote against this bill. myself 21⁄2 minutes. Certainly the gentleman from Illi- bate the pollution, traffic congestion First of all I would like to submit my nois (Mr. WELLER) says that he hopes and noise endured by residents who live printed statement for the RECORD, and these issues will be worked out in con- near the airport and north of Chicago. then I would like to go into a couple of ference. Mr. Speaker, the mayor of the O’Hare expansion is also opposed by points that have been raised here on city of Chicago’s father wanted to ex- residents of the south side of the Chi- the floor. pand aviation capacity by building a cago region, because it would make the LAX. That was a wonderful speech by third airport on Lake Michigan. The construction of a third regional airport the gentlewoman from California (Ms. mayor himself wanted to build one in virtually impossible. O’Hare expansion WATERS), but it has nothing to do with Lake Calumet. Only when the idea would deny the people who live on the this situation whatsoever. The State of came about to build it in south subur- south side of the Chicago region any Illinois is the only State in the Union ban Peotone where he did not control opportunity to enjoy the economic ben- where the Governor has veto power it did he oppose it. efits of having access to a local airport. over the construction of a new airport And so, Mr. Speaker, I am asking for H.R. 3479 would set a dangerous or a new runway. The Illinois chan- the justice of this House to vote down precedent by allowing the Federal Gov- neling laws have strictly to do with the this bill because it is controversial, and ernment to preempt State and local Illinois Department of Transportation it has implications 20 years from now laws that could limit airport expan- and the Governor, as the gentleman for the quality of life for people that I sion. Such a precedent could prevent from Illinois (Mr. HYDE) has stated, ap- represent. Give us a chance to offer the people of southern California from points all the people in charge of the Il- amendments in the regular order and developing a regional solution to our linois Department of Transportation. not on suspension. region’s aviation needs. The people of So the LAX situation has nothing to do Mr. Speaker, I reserve the balance of my congressional district in southern with, and it is not precedent-setting my time. California are already overburdened by whatsoever as far as this legislation we Mr. LIPINSKI. Mr. Speaker, may I the noise, pollution, and traffic conges- have here. inquire how much extra time the gen- tion generated by Los Angeles Inter- b 1345 tleman from Illinois (Mr. JACKSON) national Airport. Other communities used there? in southern California would like to at- The gentleman from Illinois (Con- The SPEAKER pro tempore. The gen- tract service to their local airports. gressman HYDE) has asked me a num- tleman has 63⁄4 minutes remaining. Legislation to impose LAX expansion ber of times why the City of Chicago Mr. LIPINSKI. You were very gen- would undermine southern California’s did not ask the Illinois Department of erous to him. efforts to ensure that the benefits and Transportation for a certificate of ap- Mr. Speaker, I yield 30 seconds to the burdens of airport development are proval. I now have the answer for the gentleman from Illinois (Mr. GUTIER- fairly distributed throughout our re- congresswoman. In order to get a cer- REZ). gion. tificate for the Illinois Department of Mr. GUTIERREZ. Mr. Speaker, I Last week I introduced H.R. 5144, the Transportation, it takes over a year. want to come to say that the gen- Careful Airport Planning for Southern Unfortunately Governor Ryan would no tleman from Illinois (Mr. HYDE) and California Act, known as the CAP Act. longer be in office at the end of that the gentleman from Illinois (Mr. JACK- The CAP Act would cap LAX air traffic time. A new governor could simply SON) have done a wonderful job. Obvi- at its current capacity of 78 million take that report because he has the ar- ously, people underestimated their passengers per year and would encour- bitrary veto power and chuck it out

VerDate 11-MAY-2000 06:24 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00036 Fmt 4634 Sfmt 0634 E:\CR\FM\K23JY7.062 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5127 the window and say we are going to pointees both on the Democratic side tate taxes, gun control legislation, a patients keep the gridlock in the Midwest in and from the Republican side. Two of bill of rights, and prescription drug benefits for aviation. them that I could name right here, seniors should all be on the suspension cal- The gentleman from Illinois (Con- Secretary Slater, Secretary Skinner. endar. H.R. 3479 is one of the most controver- gressman JACKSON) talks about People support this not only because it sial bills to come before the House this year. Peotone. There is nothing in whatso- is necessary to break the gridlock at It has been extremely controversial in Chi- ever in this legislation that stops O’Hare for benefit of the American cago, in the northwest suburbs, in Illinois gen- Peotone from being built. What this aviation flying public, but it will also erally, in the Illinois congressional delega- legislation does not do, though, it does create 195,000 jobs, and those jobs are tion(our two U.S. Senators are divided over it), not reach out from Washington, D.C. not going to just go to people on the in all House and Senate Committees, in the and say we have to build Peotone. It is northwest side of the city of Chicago. full Senate, and, if a full debate were held on entirely left up to the State of Illinois. They are going to go to people within the House floor today, the nation would see And it does not give high priority to the city of Chicago, within Cook Coun- just how controversial this bill is. Peotone because if we did that, every ty, within the counties that surround This bill has already been delayed in the airport in the country would be rush- Cook County. This is job creation. This Senate with one virtual filibuster—and it will be ing here to get exactly the same sta- is economic development at the high- subjected to every parliamentary and tactical tus. We do not even do that for O’Hare est possible level, and on top of all maneuver possible to try to stop it when it Airport in this legislation. O’Hare has that, once again I say to you there is comes before the senate again. Hardly non- to be improved in its modernization nothing in this legislation that stops controversial! and expansion by the FAA before it be- the State, rural county, or anyone else To tear down and rebuild O’Hare will cost comes Federal law. from building Peotone. taxpayers three times as much money as it Mr. Speaker, I thought my time Mr. JACKSON of Illinois. Mr. Speak- will cost to build a third South Suburban air- might have expired. I will be back er, I yield myself 11⁄2 minutes. port—$15–20 billion (not the $6.6 billion gen- shortly. Mr. Speaker, this is a Rand McNally erally used) versus $5–7 billion. This bill is Mr. JACKSON of Illinois. Mr. Speak- map of Chicago. It is called the Rand hardly non-controversial for taxpayers! er, I just have one final speaker; so we McNally Chicago Easy Finder Map. will continue to reserve the balance of And in this map it has all of the north- Tearing down and rebuilding O’Hare is esti- our time if that is okay. west suburbs in it, it has most of the mated to take 15–20 years, assuming ti pro- The SPEAKER pro tempore (Mr. city of Chicago, it has some of the ceeds on schedule, without lawsuits—not like- SIMPSON). Who yields time? southwest suburbs, but it stops here at ly—while building a new South Suburban Air- Mr. LIPINSKI. Mr. Speaker, since 55th Street, right here at the Museum port would take five years, it would expand our side has time to close, I reserve the of Science and Industry. My district thereafter as need arises, and would be a balance of my time. does not even start until 71st Street, more permanent solution to the capacity crisis. Mr. JACKSON of Illinois. Mr. Speak- and then it proceeds almost 40 miles When the new O’Hare is completed, we will er, the gentleman from Florida (Mr. outside the city of Chicago. be in the same position we are today with re- MICA) has the right to close. The gen- Mr. Speaker, it is as if the city of gard to the air capacity crisis. How is that not tleman from Illinois (Mr. LIPINSKI) Chicago stops right there where all of controversial? needs to exhaust the balance of his the tourists and where all of the eco- This bill will double the noise pollution in the time and then we will exhaust the bal- nomic activity is without any consider- suburban communities surrounding O’Hare. It ance of ours and we will give it to the ation of the south suburbs. is hardly non-controversial in the polluted gentleman from Florida (Mr. MICA). Mr. Speaker, I brought with me some northwest suburbs of Chicago. Mr. LIPINSKI. Mr. Speaker, is that of the many books that document the Doubling the traffic in the air space around the ruling of the Chair? damaging effects of Chicago’s per- O’Hare from 900,000 to 1.6 million operations The SPEAKER pro tempore. It is. sistent disparities between north and will make flying into O’Hare less safe for the Mr. LIPINSKI. Could I inquire to south. Let me read a passage of just public—hardly noncontroversial for the flying have a Parliamentary inquiry on why, one of these titled When Work Dis- public. since I have part of the gentleman from appears by noted University of Chicago This bill will increase environmental pollu- Florida’s (Mr. MICA) time, I should not and Harvard University Professor Wil- tion—O’Hare is already the number one pol- be able to come just before he closes? liam Julius Wilson. Professor Wilson luter in Illinois—hardly non-controversial for The SPEAKER pro tempore. The writes, ‘‘Over the last two decades, 60 those having to live in the increased pollution. original time is controlled by the gen- percent of the new jobs created in the The Chicago Tribune won a Pulitzer Prize tleman from Florida (Mr. MICA) and Chicago metropolitan area have been for documenting ‘‘sleaze’’ surrounding the City the gentleman from Illinois (Mr. JACK- located in northwest suburbs of Cook of Chicago and past O’Hare construction, SON); the reverse order of opening. and DuPage County surrounding vender, and service contracts. By passing this Mr. LIPINSKI. Mr. Speaker, I yield O’Hare Airport. African-Americans bill—and removing the Illinois Aeronautics Law myself the balance of my time. constitute less than 2 percent of the and by-passing the Illinois General Assem- Let us see something else that has population in these areas.’’ He con- bly—we are virtually sanctioning more been brought up here. Competition. cluded, ‘‘The metropolitan black poor ‘‘sleaze’’ to be found around O’Hare construc- The gentleman from Illinois (Mr. are becoming increasingly isolated.’’ tion, vender, and service contracts. Since HYDE) talked about the competition. Let us not add to this hefty volume. when has such potential ‘‘sleaze’’ become We are going to have more gates at Let us not continue to perpetuate and non-controversial for Congress. new modernized O’Hare Airport. In the exploit this divide. Let us regulate all agreement, Delta Airlines, Northwest of these books to the history section I don’t consider the Federal Government Airlines, a number of airlines that now and begin our own new chapter of bal- running over any future Governor of Illinois, utilize O’Hare but feel that they are re- anced economic growth and justice in the Illinois General Assembly, the Illinois Aero- stricted because of the size of O’Hare Chicago. nautics Law, and the 10th Amendment of the will have a much greater opportunity Mr. Speaker, I urge a no vote on this U.S. Constitution—to build an airport—non- to get gates, to get landing slots so bill. It is an unprecedented act that un- controversial. that there will be significantly more dermines our State’s ability to deter- Finally, we’re already finding out how con- competition at O’Hare. mine our State’s future. troversial this bill is as Judge Hollis Webster Another point I would like to bring Mr. Speaker, I include for the on July 9, 2002, stopped the City of Chicago up is that this is really a very bipar- RECORD the following remarks: from running rough-shod over their northwest tisan piece of legislation. Not only do Mr. Speaker, I rise in opposition to H.R. suburban neighbors by illegally trying to buy we have support from the Republican 3479. up and tear down their homes and businesses side and the Democratic side, but be- Votes on the suspension calendar are sup- to make room for O’Hare expansion. This is yond this Chamber, five secretaries of posed to be, by definition, non-controversial. just one of many controversial lawsuits that Transportation enthusiastically sup- But to argue that H.R. 3479 is non-controver- have been and will be filed in the future if this port this legislation, and these are ap- sial is like arguing that the elimination of es- bill passes and becomes law.

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00037 Fmt 4634 Sfmt 9920 E:\CR\FM\K23JY7.065 pfrm09 PsN: H23PT1 H5128 CONGRESSIONAL RECORD — HOUSE July 23, 2002 How is tearing down and rebuilding by the state or by delegation of state authority that Congress has no power to intrude upon O’Hare—which will be three times as expen- to its political subdivisions. or interfere with a state’s decision as to how sive, take three times longer, be less protec- As states by the United States Supreme to allocate state power. tive of the environment, make the skys less Court: A state’s authority to create, modify, or even safe, and be a less permanent solution than [T]he Framers explicitly chose a Constitu- eliminate the structure and power of the building a third airport—non-controversial? I tion that confers upon Congress the power to state’s political subdivision—whether that sub- say, solve the current air capacity crisis by regulate individuals, not States. . . . We division be Chicago, Bensenville, or Elm- building Peotone first, faster, cheaper, and have always understood that even where hurst—is a matter left by our system of fed- Congress has the authority under the Con- eralism and our federal Constitution to the ex- safer, then evaluate what needs to be done stitution to pass laws requiring or prohib- with O’Hare. clusive authority of the states. As stated by iting certain acts, it lacks the power directly the Seventh Circuit in Commissioners of High- H.R. 3479 fall woefully short of providing an to compel the States to require or prohibit adequate, equitable solution. those acts. New York v. United States, 505 ways v. United States, 653 F.2d 292 (7th Cir. Please know that I do not oppose fixing the U.S. 144, at 166 (1992) (emphasis added) 1981) (quoting Hunter v. City of Pittsburgh, current air capacity crisis surrounding O’Hare. It is incontestable that the Constitution 207 U.S. 161, 178 (1907)): But I have many, many grave concerns about established a system of ‘‘dual sovereignty.’’ Municipal corporations are political sub- this specific expansion plan. Concerns about Printz v. United States, 521 U.S. 898, 981 divisions of the State, created as convenient (1997) (emphasis added) agencies for exercising such of the govern- cost. About safety. About environmental im- mental powers of the State as may be en- pact. About federal precedence—and I asso- Although the States surrendered many of their powers to the new Federal Govern- trusted to them. For the purpose of exe- ciate myself completely with the remarks of ment, they retained ‘‘a residuary and invio- cuting these powers properly and efficiently my good friend, Mr. HYDE. lable sovereignty,’’ The Federalist No. 39, at they usually are given the power to acquire, Although I oppose this bill for many rea- 245 (J. Madison). This is reflected throughout hold, and manage personal and real property. sons, I rise today to discuss an important ele- the Constitution’s text. The number, nature and duration of the pow- ers conferred upon these corporations and ment of this bill—constitutionality. Residual state sovereignty was also im- the territory over which they shall be exer- The attempt to rebuild and expand O’Hare plicit, of course, in the Constitution’s con- cised rests in the absolute discretion of the ferral upon Congress of not all governmental Airport—Congress is inappropriately violating State. . . . The State, therefore, at its powers, but only discrete, enumerated ones, the Tenth Amendment. pleasure may modify or withdraw all such Art. I, Sec. 8, which implication was ren- In other contexts—specifically with regard to power, may take without compensation such certain human rights—I believe that the Tenth dered express by the Tenth Amendment’s as- property, hold it itself, or vest it in other sertion that ‘‘[t]he powers not delegated to Amendment serves to place limitations on the agencies, expand or contract the territorial the United States by the Constitution, nor area, unite the whole or a part of it with an- federal government with which I disagree. In- prohibited by it to the States, are reserved deed, in the area of human right, I believe other municipality, repeal the charter and to the States respectively, or to the people.’’ destroy the corporation. All this may be new amendments must be added to the Con- Id at 918–919. done, conditionally or unconditionally, with This separation of the two spheres is one of stitution to overcome the limitations of the or without the consent of the citizens, or Tenth Amendment. However, building airports the Constitution’s structural protections of even against their protest. In all these re- is not a human right. Therefore, in the present liberty. ‘‘Just as the separation and inde- spects the State is supreme, and its legisla- context, I agree that building airports is appro- pendence of the coordinate branches of the tive body, conforming its action to the state Federal Government serve to prevent the ac- priately within the purview of the states. constitution, may do as it will, unrestrained cumulation of excessive power in any one by any provision of the Constitution of the I believe attempts by Congress to strip the branch, a health balance of power between authority of Governor Ryan and the Illinois United States. the States and the Federal Government will Commissioners of Highways, 653 F.2d at Legislature over the delegation and authoriza- reduce the risk of tyranny and abuse from ei- 297 Chicago has acknowledged that Illinois tion to Chicago of state power to build air- ther front. Id at 921 quoting Gregory v. has delegated its power to build and operate ports—along with the authority of governors Ashcroft, 501 U.S. 452 at 458 (1991) airports to its political subdivisions by express and state legislatures in a host of other states The Supreme Court in Printz went on to em- statutory delegation. 65 ILCS 5/11–102–1, 11– such as Massachusetts (Logan), New York phasize that this constitutional structural bar- 102–2 and 11–102–5. These state law delega- (LaGuardia and JFK), New Jersey (Newark), rier to the Congress introducing on the States’ tions of the power to build airports and run- California (San Francisco airport), and the sovereignty could not be avoided by claiming ways are subject to the Illinois Aeronautics Act State of Washington (Seattle)—raise serious either (a) that the congressional authority was requirements—including the requirement that constitutional questions. pursuant to the Commerce Power and the the State approve any alterations of the air- Under the framework of federalism estab- ‘‘necessary and proper clause of the Constitu- port—by their express terms. Any attempt by lished by the federal constitution, Congress is tion or (b) that the federal law ‘‘preempted’’ Congress to remove a condition or limitation without power to dictate to the states how the state law under the Supremacy Clause. 521 imposed by the Illinois Legislature on the states delegate power—or limit the delegation U.S. at 923–924. terms of that state law delegation of authority of that power—to their political subdivisions. It is important to note that Congress can would likely destroy the delegation of state au- Unless and until Congress decides that the regulate—but not affirmatively command—the thority to build airports by the Illinois Legisla- federal government should build airports, air- states when the state decides to engage in tion to Chicago—leaving Chicago without dele- ports will continue to be built by states or their interstate commerce. See Reno v. Condon, gated state legislative authority to build run- delegated agents (state political subdivisions 528 U.S. 141 (2002). Thus in Reno, the Court ways and terminals at O’Hare or midway. The or other agents of state power) as an exercise upheld an act of Congress that restricted the requirement that Chicago receive a state per- of state law and state power. Further compli- ability of the state to distribute personal driv- mit is an express condition of the grant of ance by the political subdivision of the over- ers’ license information. But Reno did not in- state authority and an attempt by Congress to sight conditions imposed by the State legisla- volve an affirmative command of Congress to remove that condition or limitation would mean ture as a condition of delegating the state law a state to affirmatively undertake an activity that there was no continuing valid state dele- authority to build airports is an essential ele- desired by Congress. Nor did Reno involve gation of authority to Chicago to build airports. ment of that delegation of state power. If Con- (as proposed here) an intrusion by the federal Chicago’s attempts to build new runways gress strips away a key element of that state government into the delegation of state power would be ultra vires under state law as being law delegation, it is highly unlikely that the po- by a state legislature—and the sate legisla- without the required state legislative authority. litical subdivision would continue to have the ture’s express limits on that delegation of state Clearly this bill sets dangerous precedence power to build airports under state law. The power—to a state political subdivision. by stating that Congress—not the FAA, not political subdivision’s attempts to build run- H.R. 3479 would involve a federal law which Departments of Transportation, not aviation ways would likely be ultra vires (without au- would prohibit a state from restricting or lim- experts—but Congress shall plan and built air- thority) under state law. iting the delegated exercise of state power by ports. Under the Tenth Amendment and the frame- a state’s political subdivision. In this case, the Further, it ignores the 10th Amendment to work of federalism built into the Constitution, proposed federal law would seek to bar the Il- the U.S. Constitution. It guts and/or under- Congress cannot command the States to af- linois Legislature from deciding the allocation mines state laws and environmental protec- firmatively undertake an activity. Nor can Con- of the state’s power to build an airport or run- tions. And it sidesteps the checks-and-bal- gress intrude upon or dictate to the states, the ways—and especially the limits and conditions ances and the public hearing process. prerogatives of the states as to how to allo- imposed by the State of Illinois on the delega- My focus today is the same as it’s always cate and exercise state power—either directly tion of that power to Chicago. The law is clear been. Finding the best fix. And that best fix is

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00038 Fmt 4634 Sfmt 9920 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5129 the construction of a third Chicago airport near posed by the Illinois General Assembly on state power, there must be a delegation of Peotone, Illinois. The plain truth is Peotone that delegation. These constitutional re- that state power by the State to the political could be build in one-third the time at one- strictions on Congress’ power—which pro- subdivision. Further, it is axiomatic that hibit Congress from requiring states to any such delegation of state power to a polit- third the cost. For taxpayers and travelers, it’s change their state laws governing cities—are ical subdivision must be exercised in accord- a no-brainer. often termed Tenth Amendment restrictions. ance with the conditions, limitations, and Unfortunately, this bill mandates expansion Similarly, the provisions of Section 3(f) of prohibitions accompanying the State’s dele- of O’Hare yet pays mere lip service to the proposed Durbin-Lipinski legislation are gation of that power. Peotone. It puts the projects on two separate necessarily conditioned upon the existence 5. In the case of airport construction, the and unequal tracks. That is my opinion. That of state law authority of Chicago to enter Illinois General Assembly has enacted a stat- is also the opinion of the Congressional Re- into agreements for a third party (the FAA) ute that delegated to Chicago (and other mu- to alter O’Hare without first obtaining a per- nicipalities) the state law power to construct search Service, whose analysis I will provide airports explicitly and specifically subject to for the record. mit from the State of Illinois. But Chicago has no state law authority (under the delega- certain limits and conditions that the Gen- What we don’t need at this critical juncture tion of state power to build and alter air- eral Assembly imposed. One basic require- is favoritism or interference from politicians ports) to enter into an agreement to engage ment is that Chicago must first comply with and profit-oriented airlines to stack the deck in a massive alteration of O’Hare without a all of the requirements of the Illinois Aero- against Peotone. What we don’t need is a bill state permit. Congress cannot confer powers nautics Act—including the requirement that that increases the likelihood of a constitutional on a political subdivision of a State where Chicago first receive a permit (a certificate of approval) from the State of Illinois. the Il- challenge that prolongs the debate and delays the State has expressly limited its delega- tion of state power to build airports to re- linois General Assembly has expressly pro- the fix. vided that municipal construction or alter- Thus, I urge members to reject this unprec- quire a state permit. Congress has no con- stitutional authority to create powers in an ation of an airport without such a state per- edented, unwise, and unconstitutional bill. instrumentality of State law (Chicago) when mit is unlawful and ultra vires. RONALD D. ROTUNDA, UNIVERSITY OF 6. Section 3(a)(3) of the Durbin-Lipinski the very authority and power of Chicago to ILLINOIS COLLEGE OF LAW, legislation expressly authorizes Chicago to undertake the actions proposed by Congress Champaign, IL, March 1, 2002. proceed with the ‘‘runway redesign plan’’ (a depends on compliance with—and is contrary Re Proposed federal legislation granting new multi-billion dollar modification of O’Hare) to—the mandates of the Illinois General As- powers to the city of Chicago. without regard to the clear delegation limi- sembly. Hon. JESSE L. JACKSON, JR., tations and prohibitions imposed by the Illi- For the reasons discussed below, it is my House of Representatives, Washington, DC. nois General Assembly on the state statu- opinion that the proposed legislation is un- DEAR CONGRESSMAN JACKSON. As you know, tory delegation to Chicago of the state law constitutional. I serve as the Albert E. Jenner Professor of power to construct airports. Illinois law ex- Law at the University of Illinois Law School. Summary of Analysis plicitly says Chicago has no state law au- I have authored a leading course book on The following is a summary of my anal- thority to build or alter airports without Constitutional Law. In addition, I co-author, ysis: first complying with the Illinois Aeronautics along with my colleague John Nowak, the 1. Under the governing United States Su- Act, including the state permitting require- widely-used multi-volume Treatise on Con- preme Court decisions of New York v. United ments of § 47 of that Act. Even though Chi- stitutional Law, published by West Pub- States and Printz v. United States, which cago (a political creation and instrumen- lishing Company. In addition to my books, I are discussed below, the proposed legislation tality of the State of Illinois) has no power have taught and researched in the area of is not supported by any enumerated power to build or modify airports (a state law Constitutional Law since 1974. and thus violates the limitations of the power) unless Chicago obtains State ap- I have been asked to give my opinion on Tenth Amendment of the Constitution. In proval, Section 3(a)(3) purports to infuse Chi- cago (which has no legal existence inde- the constitutionality of proposed federal leg- these decisions, the Supreme Court held that pendent of state law) with a federal power to islation entitled ‘‘National Aviation Capac- legislation passed by Congress, purportedly build airports and to disregard Chicago’s fun- ity Expansion Act,’’ identical versions of relying on its exercise of the Commerce damental lack of power under state law to which have been introduced in both the Sen- Power (nuclear waste legislation in New undertake such actions (absent compliance ate and the House of Representatives by Sen- York and gun control legislation in Printz) with state law). Like New York v. United was unconstitutional because the federal ator Durbin and Congressman Lipinski (S. States and Printz v. United States the pro- laws essentially commandeered state law 1786, HR 3479), hereafter the ‘‘Durbin-Lipin- posed Durbin-Lipinski legislation involved powers of the States as instrumentalities of ski legislation.’’ Congress attempting to use a legal instru- federal policy. The Durbin-Lipinski legislation seeks to mentality of a State (i.e., the state power to 2. The same constitutional flaws afflict the enact Congressional approval of a proposal build airports exercised through its dele- proposed Durbin-Lipinski legislation. Cen- to construct a major alteration of O’Hare gated state-created instrumentality, the city tral to the Durbin-Lipinski legislation are Airport in Chicago. While this legislation fo- of Chicago) as an instrument of federal two provisions [sections 3(a)(3) and 3(f)] that cuses on Chicago and the State of Illinois, power. As the Supreme Court held in New the issues raised by the legislation have seri- purport to empower or authorize Chicago (a York and Printz, the Tenth Amendment— ous constitutional implications for all 50 political instrumentality of the State of Illi- and the structure of ‘‘dual sovereignty’’ it States. nois, and thus a city that has no authority represents under our constitutional struc- There are two key components of the legis- or even legal existence independent of state ture of federalism—prohibits the federal gov- lation that have been the subject of my ex- law) to undertake actions for which Chicago ernment from using the Commerce power to amination. has not received any delegation of authority conscript state instrumentalities as its First Section 3(a)(3) attempts to give the from the State of Illinois and that, in fact, agents. City of Chicago (a political subdivision and are directly prohibited by Illinois law when 7. Similar problems articulated in New instrumentality of the State of Illinois) the the conditions and limitations of the State York and Printz fatally afflict Section 3(f) of legal power and authority to build a pro- delegation of authority have not been satis- the proposed Durbin-Lipinski legislation. posed major alteration of O’Hare even fied. That section provides that, if (for whatever though state law does not authorize Chicago 3. Under Illinois law, Chicago (like any reason) construction of the ‘‘runway design to build the alteration without first receiv- other political subdivision of a State) has no plan’’ is not underway by July 1, 2004, then ing a permit from the State of Illinois. Chi- authority to undertake any activity (includ- the FAA Administrator (a federal agency) cago, as a legal entity, is entirely a creation ing constructing airports) without a grant of shall construct the ‘‘runway redesign plan’’ of state—not federal law—and Chicago’s au- state authority from the State of Illinois. as a ‘‘Federal Project’’. But, Section 3(f)(1) thority to build airports is essentially an ex- Under Illinois law, actions taken by political then provides that this ‘‘federal project’’ ercise of state law power delegated to Chi- subdivisions of the State (e.g., Chicago) must obtain several agreements and under- cago by the Illinois General Assembly. without a grant of authority from the State, takings from Chicago—agreements and un- The requirement that Chicago first obtain or actions taken by political subdivision in dertakings that are controlled by state law, a state permit is an integral and essential violation of the conditions, limitations or which limits Chicago’s authority to enter element of that delegation of state power. prohibitions imposed by the State in dele- into such agreements or accept such under- The U.S. Constitution prohibits Congress (1) gating the state authority, are plainly ultra takings. Chicago has no authority under the from invading and commandeering the exer- vires, illegal, and unenforceable. The City of state law (which confers upon Chicago the cise of state power to build airports, and (2) Chicago is a creature of state law, not fed- state power to construct airports) to enter from changing the allocation of state-cre- eral law. into agreements with any third party (be it ated power between the State of Illinois and 4. The power exercised by any state polit- the United States or a private party) to its political subdivisions. The U.S. Constitu- ical subdivision (e.g., the power to construct make alterations of an airport without the tion, in short, prohibits Congress from essen- airports) is in reality a power of the State— state permit required by state statute. Thus, tially rewriting state law dealing with the not inherent in the existence of the political Chicago has no authority under state law to delegation of state power by eliminating the subdivision. For the political subdivision to enter into an agreement with the FAA Ad- conditions, restrictions, and prohibitions im- have the legal authority to exercise that ministrator to have the runway redesign

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00039 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 H5130 CONGRESSIONAL RECORD — HOUSE July 23, 2002 plan constructed by the Federal government process. Under Illinois law, the cities in this struct the ‘‘runway redesign as a Federal because Chicago has not received approval state have only the power that the State Project,’’ and Chicago provides the necessary from the State of Illinois under the Illinois Constitution or the legislature grants to land, easements, etc., ‘‘without cost to the Aeronautics Act—a specific condition and them, subject to whatever limits the State United States.’’ prohibition of the delegation of state power imposes. This legal principle has long been What this proposed legislation does is au- (to build airports) to Chicago by the Illinois settled. thorize the City of Chicago to implement an General Assembly. Just as Chicago (a cre- Nearly a century ago, the U.S. Supreme airport expansion approved by the Adminis- ation and instrumentality of the State of Court, in Hunter v. City of Pittsburgh, 207 trator of the Federal Aviation Administra- Illionis) has no power or authority under U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907) held tion. But, under state law, Chicago cannot state law (absent compliance with the Illi- that, under the U.S. Constitution, cities are expand O’Hare because it does not have the nois Aeronautics Act) to enter into an agree- merely creatures of the State and have only required state permit. ment for the FAA to construct the runway those powers that the State decides to give There is no doubt that the O’Hare Airport redesign plan, Chicago also has no power or the, subject to whatever limits the States is a means of interstate commerce, and Con- authority (absent compliance with the Illi- choose to impose: gress may certainly impose various rules and nois Aeronautics Act) to enter into the other ‘‘This court has many times had occasion regulations on airports, including O’Hare. agreements provided for in Sections 3(f)(1)(B) to consider and decide the nature of munic- Congress, for example, may decide to require of the Durbin-Lipinski legislation. Again, ipal corporations, their rights and duties, airport security and require that the secu- Section 3(f) is an attempt to have Congress and the rights of their citizens and creditors. rity agents be federal employees. Or, Con- use the Commerce power to conscript state [Citations omitted.] It would be unnecessary gress could provide that it would build and instrumentalities as its agents. Instead of and unprofitable to analyze these decisions takeover the O’Hare Airport and construct Congress regulating interstate commerce di- or quote from the opinions rendered. We expansion if the State of Illinois refused to rectly (which both New York v. United think the following principles have been es- do so. States and Printz allow), the Durbin-Lipin- tablished by them and have become settled Congress may also use its spending power ski legislation seeks to regulate how the doctrines of this court, to be acted upon to take land by eminent domain and then State regulates one of its cities (which both wherever they are applicable. Municipal cor- construct or expand an airport, no matter New York v. United States and Printz do not porations are political subdivisions of the that the state law provides. The limits on allow). state, created as convenient agencies for ex- the spending clause are few. 8. The Durbin-Lipinski legislation is not a ercising such of the governmental powers of But, the proposed law does not take such law of ‘‘general application’’. There is a line the state as may be [e]ntrusted to them. . . . alternatives. It does not impose regulations of Supreme Court decisions which allow Con- The number, nature, and duration of the on airports in general, nor does it exercise gress to use the Commerce Power to impose powers conferred upon these corporations the very broad federal spending power. Nor obligations on the States when the obliga- and the territory over which they shall be does the proposed law authorize the federal tions imposed on the States are part of laws exercised rests in the absolute discretion of government take over ownership and control which are ‘‘generally applicable’’ i.e., that the state. . . . The state, therefore, at its of O’Hare Airport. Instead, it seeks to use an impose obligations on the States and on pri- pleasure, may modify or withdraw all such instrumentality of state power (i.e., the vate parties alike. See e.g., Reno v. Condon, powers, may take without compensation state law power to build airports as dele- 528 U.S. 141 (2000) (Federal rule protecting such property, hold it itself, or vest it in gated to a state instrumentality, the city of privacy of drivers’ records upheld because other agencies, expand or contract the terri- Chicago) as an exercise of federal power. they do not apply solely to the State), South torial area, unite the whole or a part of it The proposed federal law is stating that it Carolina v. Baker, 485 U.S. 505 (1988); (state with another municipality, repeal the char- is creating a federal authorization or em- bond interest not immune from nondiscrim- ter and destroy the corporation. All this may powerment to the City of Chicago to do that inatory federal income tax); Garcia v. San be done, conditionally or unconditionally, which state law provides that Chicago may Antonio Metropolitan Transit Authority, 469 with or without the consent of the citizens, not do—expand O’Hare Airport without com- U.S. 528, (1985) (law of general applicability, or even against their protest. In all these re- plying with state laws that create the City binding on States and private parties, spects the state is supreme, and its legisla- of Chicago and delegate to it certain limited upheld). But these cases have no application tive body, conforming its action to the state powers that can be exercised only if within where, as here and in New York and Printz, Constitution, may do as it will, unrestrained the limits of the authorizing state legisla- the Congressional statute is not one of gen- by any provision of the Constitution of the tion. eral applicaiton but a specifically directed at United States.’’ New York v. United States the States to use state law instrumentalities Hunter held that a State that simply takes The proposed federal law is very similar to as tools to implement federal policy. Here the property of municipalities without their the Durbin-Lipinski legislation is doubly un- the law that the Supreme Court invalidated consent and without just compensation did a decade ago in New York v. United States. constitutional, because it does not apply to not violate due process. While Hunter is an private parties or even to all States but only The law that New York invalidated singled old case, it still is the law, and the Seventh out states for special legislation and regu- to one State (Illinois) and its relationship to Circuit recently quoted with approval the one city (Chicago). The Durbin-Lipinski leg- lated that states’ regulation of interstate language reprinted here. commerce. The proposed Durbin-Lipinski islation proposes to use Chicago (an instru- The Illinois Aeronautics Act Expressly legislation singles out a State (Illinois) for mentality of state power whose authority to Limits Chicago’s Power to Build and Alter. special legislation and regulates the State’s construct airports is an exercise of state The State of Illinois has delegated to Chi- regulation of interstate commerce dealing power expressly limited and conditioned on cago the power to build and alter airports. with O’Hare Airport. the limits and prohibitions imposed on that But that power is expressly limited by the delegation by the Illinois legislature) as a While the law in this area has shifted a bit requirement that Chicago must comply with over the last few decades, it is now clear that federal instrumentality to implement federal the Illinois Aeronautics Act. And the Illinois policy. Congress is commandeering a state Congress can use the Interstate Commerce Aeronautics Act provides that Chicago has Clause to impose various burdens on States instrumentality of a single State (Illinois) no power to make ‘‘any alteration’’ to an against the express statutory will of the Illi- as long as those laws are ‘‘generally applica- airport unless it first obtains a permit, a ble.’’ The federal law may not single out the nois Legislature, which has refused to confer ‘‘certificate of approval,’’ from the State of on Chicago (an instrumentality of the State) State for special burdens. For example, Con- Illinois. Finally, Chicago has not obtained gress may impose a minimum wage on state the state law power and authority to build this certificate of approval. That fact is what airports unless Chicago first obtains a per- employees in, or affecting, interstate com- has led to the proposed federal intervention. merce as long as Congress imposes the same mit from the State of Illinois. This is an un- B. The federalism problem constitutional use of the Commerce Power minimum wage requirements on non-state As mentioned above, section 3(a)(3) of the under the holdings New York and Printz and workers in, or affecting, interstate com- proposed federal law overrides the licensing does not fall within the ‘‘general applica- merce. Congress can regulate the States requirements of § 47 of the Illinois Aero- bility’’ line of cases such as Reno v. Condon, using the Commerce Clause if it imposes re- nautics Act. This section states: South Carolina v. Baker, and Garcia. quirements on the States that are generally ‘‘(3) The State shall not enact or enforce applicable—that is, if it imposes the same ANALYSIS any law respecting aeronautics that inter- burdens on private employers. Congress can- Before discussing any further the specific feres with, or has the effect of interfering not single out the States for special burdens; provisions of the Durbin-Lipinski legisla- with, implementation of Federal policy with it cannot commandeer or take control over tion, let us review some important back- respect to the runway redesign plan includ- the States or order a state legislature to in- ground law. ing sections 38.01, 47, and 48 of the Illinois crease the home rule powers of the City of A. The basic legal principles Aeronautics Act.’’ Chicago; it cannot enact federal legislation Cities are Creatures of the States and In addition, section 3(f) authorizes Chicago that adds to or revises Chicago’s state cre- State Law—Not Instrumentalities of Federal to enter into an agreement with the federal ated and limited delegated powers. Power. Normally, this controversy sur- government to construct the O’Hare Airport The leading case, New York v. United rounding the proposed expansion of O’Hare expansion. This project is called a ‘‘Federal States, held that the Commerce Clause does Airport would be left to the state political project,’’ but Chicago must agree to con- not authorize the Federal Government to

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00040 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5131 conscript state governments as its agents. ers, or as infringing upon the core of state tion as a ‘‘federal project’’ but then require ‘‘Where a federal interest is sufficiently sovereignty reserved by the Tenth Amend- Chicago to either construct or allow con- strong to cause Congress to legislate, it must ment, the provision is inconsistent with the struction without a permit from the State of do so directly; it may not conscript state federal structure of our Government estab- Illinois). governments as its agents.’’ The proposed lished by the Constitution.’’ We should realize that the proposed Dur- Durbin-Lipinski legislation will do exactly The proposed Durbin-Lipinski legislation bin-Lipinski legislation—in commanding and what New York prohibits: it will conscript is very much like the law that six justices singling out the State of Illinois to, in effect, the City of Chicago as its agent and interfere invalidated in New York. The O’Hare bill repeal its legislation governing the powers with the relationship between the State of provides that, no matter what the State delegated to the City of Chicago—is quite Illinois and the entity it created, the City of chooses, ‘‘it must follow the direction of unusual and not at all in the tradition of fed- Chicago. Congress.’’ The State has ‘‘no option other eral legislation. For most of our history, New York invalidated a legislative provi- than that of implementing legislation en- Congress would explicitly only ‘‘rec- sion that is strikingly similar to the pro- acted by Congress.’’ ommend’’ or ‘‘request’’ the assistance of the posed federal Durbin-Lipinski legislation. The Court in New York went on to explain governors and state legislatures in imple- The Court, in the New York case, considered that there are legitimate ways that Congress menting federal policy. It is only in very re- the Low-Level Radioactive Waste Policy can impose its will on the states: cent times that Congress has sought explic- Amendments Act of 1985. Congress was con- ‘‘This is not to say that Congress lacks the itly to commandeer or order the legislative cerned with a shortage of disposal sites for ability to encourage a State to regulate in a and executive branches of the States to im- low level radioactive waste. The transfer of particular way, or that Congress may not plement federal policies. Because such fed- waste from one State to another is obviously hold out incentives to the States as a meth- eral legislative activity is recent, the case interstate commerce. Congress, in order to od of influencing a State’s policy choices. law in this area is recent, but the case law is deal with the waste disposal problem, crafted Our cases have identified a variety of meth- clear in prohibiting this type of federal as- a complex statute with three parts, only one ods, short of outright coercion, by which sertion of power. Congress may urge a State to adopt a legis- of which was unconstitutional. There were a New York v. United States held that Con- lative program consistent with federal inter- series of monetary incentives, which the gress cannot ‘‘command a State government ests. Two of these methods are of particular Court unanimously upheld under Congress’ to enact state regulation.’’ Congress may relevance here.’’ broad spending powers. Congress also author- regulate interstate commerce directly, but it The Court then discussed those two alter- ized States that adopted radioactive waste may not ‘‘regulate state governments’ regu- natives. First, there is the spending power, and storage disposal guidelines to bar waste lation of interstate commerce.’’ The Federal with Congress attaching conditions to the imported from States that had not adopted Government may not ‘‘conscript state gov- receipt of federal funds. The proposed Dur- certain storage and disposal programs. The ernments as its agents.’’ Congress has the bin-Lipinski legislation rejects the spending Court, again unanimously, relied on long- ‘‘power to regulate individuals, not States.’’ power alternative. Second, ‘‘where Congress settled precedent that approves of Congress In short, there are important limits on the creating such trade barriers in interstate has the authority to regulate private activ- ity under the Commerce Clause, we have rec- power of the federal government to com- commerce. mandeer the state legislature or state execu- Then the Court turned to the ‘‘take title’’ ognized Congress’ power to offer States the tive branch officials for federal purposes. An- provisions and held (six to three) that they choice of regulating that activity according other way to think about this issue is that, were unconstitutional. The ‘‘take title’’ pro- to federal standards or having state law pre- to a certain extent, the Constitution forbids vision in effect required a State to enact cer- empted by federal regulation.’’ The proposed Congress from imposing what recently have tain regulations and, if the State did not do Durbin-Lipinski legislation rejects that al- been called ‘‘unfunded mandates’’ on state so, it must (upon the request of the waste’s ternative as well. It does not propose that officials. Congress cannot simply order the generator or owner), take title to and posses- Congress directly takeover and expand States or state officials or a city to take sion of the waste and become liable for all O’Hare Airport. Instead, it proposes that the care of a problem. Congress can use its damages suffered by the generator or owner City of Chicago be allowed to exercise power spending power to persuade the States by as a result of the State’s failure to promptly that the State does not allow the City to ex- using the carrot instead of the stick. take possession. ercise. The Court explained that Congress could, if New York v. United States did not ques- While there are those who have attacked it wished, preempt entirely state regulation tion ‘‘the authority of Congress to subject the restrictions that New York v. United in this area and take over the radioactive state governments to generally applicable States have imposed on the Federal Govern- waste problem. But Congress could not order laws.’’ But Congress cannot discriminate ment, it is worth remembering the line-up of the States to change their regulations in against the States and place on them special the Court in Maryland v. Wirtz when the jus- this area. Congress lacks the power, under burdens. It cannot commandeer or command tices first considered this issue. That case re- the Constitution, to regulate the State’s reg- state legislatures or executive branch offi- jected the applicability of the Tenth Amend- ulation of interstate commerce. This is what cials to enforce federal law. Congress can ment and held that it was constitutional for the proposed federal O’Hare Airport bill will regulate interstate commerce and States are Congress to set the wages, hours, and work- do: it will regulate the State’s regulation of not immune from such regulation just be- ing conditions of employees, including state interstate commerce by telling the State cause they are States. For example, Congress employees in interstate commerce. However, that it must act as if the City of Chicago has can forbid employers from hiring child labor Justice Douglas, who was joined by Justice complied with the Illinois Aeronautics Act to work in coal mines, whether a private Stewart, dissented. Douglas found the law to and other state rules. company or a State owns the coal mine and be a ‘‘serious invasion of state sovereignty In a nutshell, Congress cannot constitu- employs the workers. protected by the Tenth Amendment’’ and tionally commandeer the legislative or exec- Printz v. United States. Following the New ‘‘not consistent with our constitutional fed- utive branches. The Court pointed out that York decision, the Court invalidated another eralism.’’ He objected that Congress, using this commandeering is not only unconstitu- federal statute imposing certain administra- the broad commerce power, could ‘‘virtually tional (because nothing in our Constitution tive duties on local law enforcement offi- draw up each State’s budget to avoid ‘disrup- authorizes it) but also bad policy, because cials, in Printz v. United States. The Brady tive effect[s]’’’ on interstate commerce. New federal commandeering serves to muddy re- Act, for a temporary period of time, required York v. United States prevents this result. sponsibility, undermine political account- local law enforcement officials to use ‘‘rea- The ‘‘generally applicable’’ restriction is ability, and increase federal power. sonable efforts’’ to determine if certain gun important, and it explains Reno v. Condon. The proposed Durbin-Lipinski legislation sales were lawful under federal law. The fed- Congress enacted the Driver’s Privacy Pro- prohibits Illinois from applying its laws reg- eral law also ‘‘empowered’’ these local offi- tection Act (DPPA), which limited the abil- ulating one of its cities. The proposed federal cers to grant waivers of the federally pre- ity of the States to sell or disclose a driver’s law also authorizes the federal government scribed 5-day waiting period for handgun personal information to third parties with- to make an agreement with Chicago, pursu- purchases. Note that the proposed Durbin-Li- out the driver’s consent. Chief Justice ant to which Chicago will assume some sig- pinski legislation will also ‘‘empower’’ the Rehnquist, for a unanimous Court, upheld nificant obligations, even though present City of Chicago to do that which Illinois does the law as a proper regulation of interstate state law gives Chicago no authority to en- not authorize the city to do. commerce and not violating any principles gage in this activity. As the six to three New To make the analogy even more compel- of federalism found in New York v. United York decision made clear: ling, the chief law enforcement personal States or Printz because the law was ‘‘gen- ‘‘A State may not decline to administer suing in the Printz case said that state law erally applicable.’’ the federal program. No matter which path prohibited them from undertaking these fed- Reno grew out of a congressional effort to the State chooses, it must follow the direc- eral responsibilities. That, of course, is the protect the privacy of drivers’ records. As a tion of Congress. . . . No other federal stat- exact position in which Chicago finds itself. condition of obtaining a driver’s license or ute has been cited which offers a state gov- State law prohibits Chicago from entering registering a car, many States require driv- ernment no option other than that of imple- into and committing to these federal respon- ers to provide personal information, such as menting legislation enacted by Congress. sibilities (e.g., the agreements between Chi- name, address, social security number, med- Whether one views the take title provision cago and the FAA in § 3(f) of the proposed ical information, and a photograph. Some as lying outside Congress’ enumerated pow- Durbin-Lipinski legislation call for construc- States then sell this personal information to

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00041 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 H5132 CONGRESSIONAL RECORD — HOUSE July 23, 2002 businesses and individuals, generating sig- That’s the rub. Some people who favor the Justice Sandra Day O’Connor, speaking for nificant revenue. To limit such sales, Con- expansion don’t want Chicago to comply the Court in 1992, put it bluntly: ‘‘Where a gress enacted the DPPA, which governs any with the state permit requirement, so they federal interest is sufficiently strong to state department of motor vehicles (DMV), urged Congress to enact legislation that au- cause Congress to legislate, it must do so di- or state officer, employee, or contractor thorizes Chicago to do what state law for- rectly; it may not conscript state [or city] thereof, and any resale or re-disclosure of bids. Enter the U.S. Constitution. For over governments as its agents.’’ drivers’ personal information by private per- two centuries, the federal government has sons who obtained the information from a had the power to regulate interstate com- A CONTROLLER’S VIEW state DMV. The Court concluded: ‘‘The merce. After the terrorist attacks, for exam- Ladies and gentlemen; I have proudly DPPA’s provisions do not apply solely to ple, Congress relied on that power to fed- served the FAA for the past 14 years as an States.’’ Private parties also could not buy eralize airport security. Notably, Congress Air Traffic Controller. I have been employed the information for certain prohibited pur- didn’t deal with the problem by ordering at several air traffic control facilities poses nor could they resell the information state and city police to take over security throughout the Chicagoland area, and feel to other parties for prohibited purposes, and and pay the bills. That’s because the federal that I have a unique perspective on enhanc- the States could not sell the information to government knew it could not regulate by ing future airport development. the private parties for certain purposes if the conscripting state or city governments as its To date, most of you have heard numerous agents. private parties could not buy it for those insights on a proposed third major airport Congress acknowledged that fundamental purposes. for Chicago. Let me offer another perspec- Unlike the law in New York, the Court principle in 1789, the very year that the Con- tive from a ‘‘controller’s viewport’’. Within a concluded that the DPPA does not control or stitution was ratified. The First Congress en- small twenty-mile radius of the Chicagoland regulate the manner in which States regu- acted a law that requested state assistance late private parties, it does not require the to hold federal prisoners in state jails at fed- area, lie four of the busiest airports in the States to regulate their own citizens, and it eral expense. The law did not command the country. Approximately one and one half does not require the state legislatures to states’ executives, but merely recommended million airplanes take off and land at enact any laws or regulations. Unlike the to their legislatures, and offered to pay 50 Palwaukee, Dupage, Midway, and O’Hare law in Printz, the DPPA does not require cents per month for each prisoner. When Airports yearly! This puts a tremendous state officials to assist in enforcing federal Georgia refused, Congress authorized the strain on the Air Traffic Controllers who statutes regulating private individuals. This U.S. marshal to rent a temporary jail until a struggle to keep this area safe and without DMV information is an article of commerce permanent one could be found. It never oc- significant delay. With air travel continu- and its sale or release into the interstate curred to Congress that it could make city ously increasing, delays and safety will be- stream of business is sufficient to support or state officials its minions by instructing come a nearly impossible challenge. federal regulation. them to act as if they were federal employ- Plans for expansion at the two major Chi- The DPPA is a ‘‘generally applicable’’ fed- ees. cago airports will not be enough to meet de- eral law regulating commerce because it reg- All this changed a little over a decade ago, mands. O’Hare airport has reached its max- ulates the universe of entities that partici- when Congress has to decide how to dispose imum capacity creating consequential pate as suppliers to the market for motor ve- of radioactive waste. Rather than handle the delays. There are not enough available gates, hicle information—the states as initial sup- matter directly, it chose a low-cost solution: runways, and taxiways to serve all the air- pliers and the private resellers or redis- it simply ordered the states to take care of craft. Although there are plans to add addi- closers of this information. ‘‘South Carolina the problem. The law required the states to tional gates and another runway, this will has not asserted that it does not participate take title to radioactive waste that private not address the taxiway problem. Due to the in the interstate market for personal infor- parties had generated, and be responsible for layout of O’Hare airport, in my opinion there mation. Rather, South Carolina asks that its disposal, at not cost to the federal gov- is no effective way to construct additional the DPPA be invalidated in its entirety, even ernment. In 1992, the Supreme Court invali- taxiways that will have a positive impact on as applied to the States acting purely as dated the law, calling it an unprecedented ef- airport operations. Thus making any other commercial sellers.’’ fort by the federal government to co-opt leg- method to increase capacity ineffective. CONCLUSION islative and executive branch officials of The problems that face O’Hare are some of The proposed federal law dealing with the state government. the same problems facing Midway Airport. O’Hare Airport expansion is most likely un- A few years later, Congress mandated Midway boasts as being aviation’s busiest constitutional because it imposes federal background checks in connection with gun square mile. Nowhere else are there more rules on the relationship between a city and purchases. It didn’t want to spend federal commercial airplanes landing and departing the State that created the city. It subjects money for bureaucrats to enforce the new in such a condensed area. Unfortunately, Illinois to special burdens that are not gen- law, so it told city and state law enforce- Midway Airport is very condensed. Due to erally applicable to private parties or even ment personnel to carry out the background runway lengths, it can only handle the to other States. It authorizes the City of checks. Printz v. United States invalidated smallest commercial aircraft. The airport is Chicago to do that which Illinois now pro- that portion of the federal law. The Supreme severely landlocked with major streets, hibits. Court explained that city and state officials houses and businesses immediately sur- There is no escape from the conclusion do not work for the federal government; they rounding the field. Even with the current that the proposed federal law does not regu- work for the state. Cities are creatures of terminal expansion project in effect, an in- late the behavior of private parties in inter- state law, and they have only the powers sufficient number of taxiways and the size of state commerce. It does not subject the that the state chooses to give them. the runways, in my opinion limit any signifi- State of Illinois to ‘‘generally applicable’’ Federalism, the Court tells us, exists to cant increase in traffic. legislation. Instead, Congress is regulating protect the people by dividing power between The need for a third major airport is loud the state’s regulation of interstate com- the states and the federal government. That and clear. With the projections of air traffic merce. Congress may not conscript the in- protection is undermined if Congress can by- on the rise, additional airports must become strumentalities of state government and pass the federal bureaucracy by directing available. In my opinion, Peotone is an ex- state power as tools of federal power. The state or city officials to do its bidding. The cellent location for a major commercial air- case law is clear that Congress does not have Court added that allowing Congress to treat port. Peotone is located just outside the this power. state officials as its worker bees is bad pol- main flow of air traffic in and out of Chi- Sincerely, icy because it muddies responsibility, weak- cago. Any additional airplanes created by RONALD D. ROTUNDA, ens political accountability, and increases the third airport would not adversely effect The Albert E. Jenner, Jr. Professor of Law. federal power. air traffic facilities located east, south, and The Constitution gives Congress plenty of west of Peotone. A third airport located in CHICAGO IS NOT AN AGENCY OF THE FEDERAL ways to deal with O’Hare, but they all cost Peotone would not be significantly effected GOVERNMENT money: Congress can use its spending power by Chicago’s air traffic, which is rapidly (By Ronald D. Rotunda) to expand the airport; it can give the state reaching a saturation point, but instead Congress is at it again. The Senate Com- money on the condition that it expand the would aid in alleviating the congestion head- merce Committee has cleared a bill that airport; it can order federal officials (the ing into Chicago. would, in effect, enlist Chicago as an agency Army Corps of Engineers) to build the Another point of interest, which may have of the federal government. The immediate O’Hare expansion. But Congress may not been overlooked, is corporate aircraft. The dispute involves O’Hare Airport, but the un- simply order or authorize state or city offi- use of corporate aircraft is one of the fastest derlying constitutional issue affects us all. cials to violate state law and act like federal growing fields in aviation. There are very The question is whether there should be a employees. The proposed federal law dealing few, if any airports that can accommodate major expansion of O‘Hare, or a new airport. with the expansion of O’Hare Airport sub- corporate aircraft in the south Chicagoland That decision has been entrusted to Chicago, jects Illinois to special burdens that are not area. With the pending closure of Meigs a city created under Illinois law. But the applicable to other states or to private par- Field in Chicago, the Petone airport would state placed an important condition on Chi- ties, and it authorizes Chicago, a city cre- fill the need for another corporate airport cago’s power to expand O’Hare. First, the ated by the state, to do that which Illinois crucial to south Chicagoland businesses. city has to secure a state permit. law prohibits. Furthermore, suggestions that a third major

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00042 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5133 airport being located in the immediate does this leaves Illinois and Chicago? It counts, these areas find themselves over- Chicagoland area, namely Gary, Indiana, leaves us with no growth in the industry if looked and under-served—primarily due to would not alleviate the saturation problem we have no place to land more airplanes. If their distance from the region’s airports. Chicago is already facing. Indiana were ever to get smart and construct This economic disparity is clearly evident In closure, I would like to thank all those a major airport to the East of Peotone, from the following maps, which show job involved with the Petone Airport project. I imagine the damaging economic impact it concentrations in 1960 and 1990. This period am greatly anticipating the future events would have on Northern Illinois! marked major declines in manufacturing surrounding this project. Sincerely, jobs in the region’s South Side; and a rise in JOHN W. TEERLING. both manufacturing and service jobs in the JOHN W. TEERLING, North/Northwest, around O’Hare. Airport ac- Lockport, IL, January 18, 1999. THE FUTURE OF THE CHICAGO REGION: SMART cess was the difference. The solution to the region’s needs is the Re A Third Chicago Airport. GROWTH, INFILL REDEVELOPMENT AND RE- Third Chicago Airport. Development of the Governor GEORGE RYAN, GIONAL BALANCE State Capitol, Springfield, IL. Third Chicago Airport is a true urbanist’s DEAR GOVERNOR RYAN: My name is John The Midwest and, in particular, the Chi- dream: obtaining multiple benefits from one Teerling and I recently retired, after 31.5 cago Metropolitan Area, has had a remark- investment. Why, then, is it being ignored? years with American Airlines as a Captain, able turnaround in economic fortune over When you have two powerful and thoughtful flying international routes in Boeing 767 and the past decade. It has shed its ‘‘rust-belt’’ representatives of the people—Congressman 757’s. I was based at Chicago’s O’Hare my en- image and has produced remarkable eco- Henry Hyde saying ‘‘we’ve had enough,’’ and tire career. I have seen the volume of traffic nomic growth. Congressman Jesse Jackson, Jr. saying ‘‘let at O’Hare pick up and exceed anyone’s expec- Between 1990 and 1998, the six-county Chi- us have some—perhaps we should listen to tations, so much so, that on occasion mid- cago area grew by 505,500 persons, a 7 percent them. Other representatives—Congressmen airs were only seconds apart. O’Hare is at increase. While this percent increase is mod- Jerry Weller, Bobby Rush, and Tom Ewing, maximum capacity, if not over capacity. It erate, the numerical increase is equivalent Senator Peter Fitzgerald, Governor George is my opinion that it is only a matter of to a city larger than Denver. Ryan, Senate President Pate Phillip—plus time until two airliners collide making dis- Between 1990 and 1997, the six-county area scores of local mayors, hundreds of local astrous headlines. grew by 275,000 jobs, a 9 percent increase. Be- businesses and hundreds of thousands of resi- Cities like Atlanta, Dallas and especially tween 1970 and 1996, the region (Kenosha to dents, have joined in the effort to bring the Miami continue to increase their traffic Michigan City) grew by 1.310 million jobs, airport to the South Suburbs. Perhaps, with flow, some months exceeding Chicago, and at the fifth largest increase in the nation. the airport in place, we can begin to truly some point could supersede Chicago perma- Between 1996 and 2020, the Chicago region balance growth, encourage infill develop- nently. If Chicago and Illinois are to remain is projected to grow by 785,000 persons. This ment and share the wealth of the region. as the major Hub for airline traffic, a third is a city the size of San Francisco. THE PLANNING PROCESS: TWELVE YEARS OF major airport has to be built, and built now. Between 1996 and 2020, the Chicago region FINDINGS Midway, with its location and shorter run- is projected to have the largest growth of The state agency responsible for planning ways will never fill this void. A large inter- any metro area in the U.S., adding 1.118 mil- the region’s transportation infrastructure, national airport located in the Petone area, lion jobs. the Illinois Department of Transportation complete with good ground infrastructure In spite of these significant regional turn- (IDOT), has been planning for the region’s (rail and highway) to serve Chicago, Kan- arounds, the City of Chicago continued to aviation needs for the past twelve years. kakee, Joliet, Indiana and the Southwest lose ground. Between 1991 and 1997, the City IDOT, and its aviation consultants, are con- suburbs, would be win, win situation for all. of Chicago lost over 27,000 jobs; 11,0000 were vinced, without a doubt, that Chicago’s avia- The jobs created for housing, offices, hotels, from the South Loop. Every one of the City’s tion demands will more than double by 2020. shopping, manufacturing and light industry eight major community areas experienced The Federal Aviation Administration (FAA), could produce three to four hundred thou- losses, with the exception of North Michigan the Airports Council International (ACI) and sand jobs. Good paying jobs. Avenue and the Northwest area around other industry groups have forecasted na- Another item to consider, which I feel is O’Hare International Airport. The Far tional growth of similar magnitude. For a extremely important, is whether. I have fre- South, Southwest and South communities brief time, the City of Chicago agreed, as quently observed that there are two distinct experienced the greatest losses. well. The Chicagoland Chamber study pre- weather patterns between O’Hare and Kan- This development trend extended to the dicts a five-fold increase in international kakee. Very often when one is receiving suburban area. While the six-county Chicago traffic. IDOT’s studies support the conten- snow, fog or rain the other is not. These con- Area grew by 275,000, the north and north- tion that Chicago has an excellent oppor- ditions affect the visibility and ceiling con- west suburbs were the major beneficiaries. tunity to be the dominant North American ditions determining whether the airports op- DuPage, Lake and Northwest Suburban Cook hub for international flights, as well as its erate normally or not. Because of the dif- (around O’Hare) Counties contributed 194,000 premier domestic hub, into the next century. ference in weather patterns when one air- jobs, or 71 percent of the net growth. With That point has been stated and documented port, say O’Hare, is experiencing a hampered 500,000 jobs in Chicago’s Central Business on many occasions by IDOT. The State’s operation, an airport in Peotone, in all prob- District versus 450,000 in North Suburban forecasts have been corroborated, independ- ability, could be having more normal oper- Cook County and 150,000 in Northeast Du ently, by a decade of observations. They are ations. Airliners could then divert to the Page County, the economic center of the re- reinforced in the latest study for the ‘‘other’’ Chicago Airport, saving time and gion has shifted from downtown to O’Hare. Chicagoland Chamber of Commerce. It is agreed, by all key interest groups, that the money as well as causing less inconvenience O’Hare International Airport is, undoubt- Chicago region must increase its aviation ca- to the public. (It’s better to be in Peotone edly, the great economic engine it is por- pacity. than in Detroit). trayed. But, it has run out of space, both in It is well known that American and The region cannot double its aviation serv- the air and on the ground. Its enormous at- United, who literally control O’Hare with ice without building major new airport ca- traction, to business and industry, has their massive presence, are against a third pacity. O’Hare and Midway are now at capac- brought thousands of enterprises, hundreds airport, Why? It is called market share com- ity. Enplanements already are being af- petition and greed. A new airport in the of thousands of jobs, millions of visitors and fected, with growth limited to increases in Peotone area would allow other airlines to billions of dollars, annually, to the Chicago plane size or load factor; neither is expected service Chicago and be competition. Amer- region. On this, we all agree. But, the area to increase further. The City’s $1.8 billion in- ican and United are of course dead set surrounding it is choking on the develop- vestment in terminals will not increase ca- against that. What they are not considering ment. Other areas, particularly the South pacity. But, the adverse impact on the re- is that their presence at a third airport Side, are in great need of both jobs and bet- gion already is evident. Businesses and resi- would afford them an even greater share of ter airport access. In fact, the two issues are dents are witnessing major increases in fares the Chicago regional pie as well as put them closely related. in the Chicago region, according to IDOT, in a great position for future expansion. The massive development attracted by the USDOT, the GAO and the FAA, itself. You also have Mayor Daley against a third O’Hare Airport makes airport expansion Perhaps in response to these obvious con- airport because he feels a loss of control and there costly, time-consuming, difficult and straints, both the Chicagoland Chamber and possible revenue for the city. This third air- intrusive. Traffic often is brought to a near the Commercial Club of Chicago have begun port, if built, and it should be, should be halt on the expressways leading to O’Hare; to address the region’s aviation issues. The classified as the Northern Illinois Regional future traffic problems would be compounded Chamber calls for O’Hare expansion. The Airport, controlled by a Board with rep- many times over. O’Hare’s neighbors—well- ‘‘Metropolis 2020’’ study also recognizes the resentatives from Chicago and the sur- aware of its many economic contributions— need for additional aviation capacity, with a rounding areas. That way all would share in also are wary of expansion, weary of noise call for expansion of O’Hare and land bank- the prestige of a new major international and traffic, and fearful of possible future ing of the Third Airport site in Peotone. This airport along with its revenues and expand- compromises on safety. On the opposite side call for action comes none too soon. There ing revenue base. of the region—and the other side of the ledg- are many indications that the Chicago re- The demand in airline traffic could easily er—are the communities of the Chicago gion has begun to suffer from capacity con- expand by 30% during the next decade. Where South Side and the South Suburbs. By all ac- straints.

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00043 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 H5134 CONGRESSIONAL RECORD — HOUSE July 23, 2002 Ten years ago, Chicago was one of the na- below. The ‘‘Metropolis 2020’’ study addresses It will buttress monopolistic behavior by tion’s least expensive regions to fly to, due this disparity issue by calling for a sharing major airlines. to its central location. Obviously, its loca- of revenues with the ‘‘lesser haves.’’ The Building the Third Chicago Airport is a tion has not changed; however, now, due to more-responsive, enduring and—ultimately— true urbanist’s dream. It solves multiple O’Hare’s capacity overload and higher fares, more-equitable solution is to provide the problems with one investment. it is cheaper to fly from all around the coun- South Side with the Economic opportunities It develops an environmentally-sensitive, try to many other cities than to Chicago. generated by the Third Chicago Airport. new airport, that can provide increased ca- For instance, according to data supplied by pacity for decades to come. the airlines to the U.S. Department of Trans- Whether the region expands O’Hare or It provides nearby, inexpensive land for de- portation, it is now cheaper to fly from builds a supplemental airport, O’Hare’s velopment. Green Bay to Las Vegas than from Green riches will remain and grow. It is currently It brings jobs and development to mature Bay to Chicago. It is cheaper to fly from Se- enjoying a $1 billion public investment to portions of the region. attle to Orlando than from Seattle to Chi- upgrade its terminals. Midway, as well, will It allows three airport facilities to func- cago. Something is wrong. Due to capacity continue to thrive, as the recipient of an tion at optimal capacity. constraints, O’Hare’s airlines are over-charg- $800-million-publicly-funded new terminal. It maintains the Chicago region as the na- ing their patrons by $750 million, annually However, this $1.8 billion investment will not tion’s aviation capital. (the difference between average fares for increase capacity. The initial infrastructure Because of planning already completed, large U.S. airports and those at O’Hare). This investment of $500 million ($2.5 billion the Third Chicago Airport can be built before fact is beginning to affect regional develop- through 2010) to build the Third Chicago Air- additional runways at O’Hare. ment—especially conventions and tourism— port, will. And, it will produce more than Resources are available to build the air- but, it also affects every major and start-up just added aviation capacity. The Third Chi- port. business, every individual with family and cago Airport will provide 235,000 airport-re- Federal Funds for airport development will friends in far-flung places. As is well-known, late jobs—in the right places—by 2020. Addi- increase by 50 percent. access to a major airport is one of the top tional airport access jobs will benefit the en- The U.S. Congress, many businesses and three requirements of a locating or expand- tire region. In addition, it will reinforce the consumers are demanding access to and ing business. But, access must be at competi- City of Chicago’s role as the center of the re- through the Chicago area. tive fares. Expanding O’Hare will simply but- gion’s growth. Ultimately, the passenger pays through tress the monopolistic behavior of its air- Spokesmen for the incumbent airlines Passenger Facility Charges. lines. Such monopolistic practices currently claim that other airlines will not invest in are a major concern of Congress. the Third Chicago Airport; this is a tradi- THE GROWING IMBALANCE IN THE REGION’S THE DEVELOPMENT ALTERNATIVES tional response to discourage competition. GROWTH, AND ACCESS TO JOBS Aviation infrastructure must be ex- Furthermore, the financing of any airport 1. The Chicago region has grown robustly panded—and expanded soon—to bring true comes, principally, from its users. The Third over the past 25–30 years. competition, lower fares and increased serv- Chicago Airport market comprises 16.5 per- Over 1.310 million jobs (1970–96) for the con- ice to the region. The alternatives are two: cent of the region’s current air trip users, solidated area. adding runways to O’Hare; or building the with a potential for contributing 20 percent. Over 275,000 jobs between 1990 and 1997, Third Chicago Airport. The two alternatives They should not be left behind. Upfront air- alone, for the six-county area. have far different consequences. The ques- port development costs, for planning and en- 2. This growth has been very uneven. The tion is: ‘‘Will we continue to spend great out- gineering and land acquisition traditionally North has prospered, while the South has lays of public-private funds on an area that have come from the federal government. In languished. is overwhelmed with both riches and the con- this ‘‘Year of Aviation’’, these funds are ex- 3. The region’s center has migrated from gestion those riches bring; or do we make pected to increase by 50 percent; and Pas- Downtown Chicago (with its excellent public those investments in mature urban areas senger Facility Charges (PFC’s) are expected transportation access) to the area around that are wanting for jobs and economic de- to increase from $3 to $6. Currently, $1 in O’Hare (dependent on autos). velopment? ’’ PFC’s at O’Hare yields $37 million per year. 4. The City of Chicago lost over 27,000 jobs As is clearly documented by a recent At the Full-Build forecast and $6 rate, the between 1991 and 1997; 11,000 of these losses Chamber study, O’Hare’s benefits are con- Third Chicago Airport will generate $100 mil- were from the South Loop. ferred, primarily, on the west, north and lion in PFC’s annually by 2010. The FAA 5. The suburbs grew by 300,000 jobs. The northwest suburbs. Virtually all of O’Hare’s must provide the needed approvals and nor- areas to the north, northwest and west employees reside near it. In addition, it has mal up-front funding. A Third Airport devel- (O’Hare-influenced) contributed nearly garnered high concentrations of develop- opment in the Sought Suburbs can provide 200,000 of this growth. ment. These concentrations, however, have social and economic parity; and it can do it 6. With 500,000 jobs in Chicago’s CBD, led to congestion and increased land values. with a hand-up rather than a hand-out. versus 450,000 in North Suburban Cook and 150,000 in Northeast DuPage, the economic High land prices have forced businesses and THE ARGUMENT FOR SMART GROWTH WITH center of the region has shifted from Down- developers to plan future growth on the most CHICAGO’S THIRD AIRPORT environmentally-sensitive fringes of the re- town to O’Hare. Independent studies have demonstrated 7. Consequently, residents of the South gion and in areas farther removed from the overwhelmingly, the need for expanded avia- region’s central core. Side and South Suburbs have commutes to tion capacity in the Chicago region. work that are among the nation’s longest. THE TWO SIDES OF THE COIN Demand will more than double by 2020. There is little public transit between sub- While unprecedented growth takes place Needed is a Third Airport that can grow as urbs. around O’Hare, to the north, the three mil- future demand dictates. 8. These same residents do have the re- lion residents of the region who reside south The need is now. The region is beginning to gion’s highest tax rates, however; without of McCormick Place are left with long trips experience the costs of capacity constraints. businesses and industries, the residents, to the airport for flights and out of the run- These are: alone, must pay for all their services. ning for the many jobs it produces. The con- Dampended aviation growth. 9. New businesses and industries want ac- sequences, for South Side/South Suburban Increased and non-competitive fares. cess to major airports. O’Hare’s nearby com- residents and the dwindling businesses that Lost jobs, conventions and other opportu- munities have run out of space to offer. The serve them, are the highest property tax nities. South Side has ample land, but no airport. rates in the State. Because jobs have dis- There are two alternatives for meeting the The ample land also allows the construction appeared, residents have some of the longest region’s demand: of an environmentally-sensitive airport. trips to work in the nation. Because transit Adding runways at O’Hare—an area al- 10. To accommodate the economic growth only to the Loop is convenient, recent job ready well-served and suffering the effects of anticipated over the next 20 years, the Chi- losses in that area, as well, (11,000 since 1991; overdevelopment and congestion, or; cago region needs additional airport capac- 25,000 since 1983) have compounded the job Building the Third Chicago Airport—in- ity. To balance the economic growth, it searches of the South Side’s residents. For vesting in an existing, mature part of the re- needs a South Suburban Airport. decades, regional planning agencies have gion suffering losses due to changes in the SOUTH SUBURBAN AIRPORT: AVIATION DEMAND called for the development of moderate-in- national/regional economies and lack of ac- come housing near job concentrations. In- cess to a major airport. IN THE CHICAGO REGION stead, let us bring the jobs to the residents. Doubling traffic at O’Hare drives new de- Background Assumptions for Demand Forecasts Recent public forums on the disparity of velopment farther away from the region’s Aviation demand is derived from a few property tax rates in Cook County’s north core—the Chicago Central Area—and its resi- basic factors: and south communities have led to the dents and businesses to the South. The national/international growth in avia- South’s designation as the ‘‘Red Zone,’’ sig- It will encroach on environmentally-sen- tion. nifying its concentration of highest property sitive areas. The socio-economic dynamics and growth tax rates. This disparity was not always so. It will compound noise, pollution and traf- of the region. It has occurred over the last three decades fic congestion; and impose these on hundreds The location/desirability of the region for and proliferated in the last two, as shown of thousands of additional residents. providing connecting flights.

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00044 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5135 The ability of the region to accommodate cern. The Chicago region has reached avia- casts will be endorsed and the Regional this demand depends on: tion capacity. These aviation capacity con- Transportation Plan for 2020 will be adopted. The capacity of its airports. straints have dampened regional growth: These actions are scheduled for June 1997. The competitiveness of its fares. Since 1995, O’Hare’s growth in commercial Beyond the immediate need to support the National/International Aviation Growth operations has stopped. transportation planning process, this re- Domestic enplanements at O’Hare have de- gional discussion advances NIPC’s mission of The FAA forecasts a doubling in aviation clined this year. striving for consensus on policies and plans growth over a 15 year period. Small cities have been dropped from serv- for action which will promote the sound and International enplanements and freight are ice. orderly development of the northeastern Illi- growing even more rapidly. Booz-Allen says the international market nois area. The purpose of this newsletter is The FAA and the Airports Council Inter- is not being well served. to inform the region of what we have heard national have equated this growth to 10 Fares at O’Hare have risen above the aver- and to encourage continuing deliberation on O’Hare Airports. age for large airports. what kind of region we want to be in the By 2012, there will be more than 1 billion O’Hare’s delays have been much greater next century. enplanements, 2 billion passengers in the this year than last; O’Hare’s delays are U.S.. What We Have Heard among the nation’s highest and cascade Several general conclusions emerged from Socio-Economics Create Demand throughout the nation’s airports. the workshops. The first is that there is Since the original aviation forecasts, made The FAA has long forecasted such capacity widespread, though by no means unanimous, in 1994, the socio-economic performance of problems and resultant delays. In 1992 it belief that the past trend of dispersed, low- the Chicago region has matched or exceeded forecasted a doubling of airports with delay density residential and employment growth expectations: problems by 2001. has had unintended negative consequences In 1990–1996, population and employment The forecasts have arrived a bit ahead of which must be moderated to some degree in for the 14- and 9-County regions grew at schedule. Without additional capacity, the the interests of environmental quality, pru- rates and volumes slightly above those fore- economic well-being of both Chicago and the dent public investment, and social equity. cast. nation are jeopardized. There is also substantial support for some The Chicago Consolidated Area (Kenosha public policy measures which could help to Michigan City) produced 1,311,000 jobs be- NIPC FINDINGS—NOVEMBER 1996 achieve that moderated growth. These will tween 1970 and 1996; and added 617,260 per- TALKING ABOUT THE REGION’S FUTURE be described in more detail below. Some sons. We recently asked a cross-section of the re- measures which could be highly effective in The regional planning agencies have in- gion’s leaders: moderating past trends are widely agreed to creased their 2020 forecasts, to reflect this Should water quality protection measures lack political acceptability in this region. growth. So has NPA, author of forecasts used for our rivers, lakes, and streams be imple- Finally, there is broad support for measures by City of Chicago. mented even if this means placing develop- which would improve the quality of local Woods & Poole Economics (the national ment limits on presently undeveloped high- planning and development within either a forecast used by IDOT), in its 1999 edition, quality watersheds? continued trends or moderated trend ap- expects the Chicago region to produce the Should the region pursue infill and rede- proach. largest volume growth in employment of any velopment strategies that lead to employ- metropolitan region in the U.S.:—for 1996– The Forecast: A Growing Region ment and income growth in older commu- 2020, a 1,118,660 job growth—for 1990–2020, a The preparation of forecasts of future pop- nities that have experienced diminished tax 1,635,570 job growth ulation, households, and employment is one base and disinvestment? Chicago’s economy an continue its robust of NIPC’s most important responsibilities. Should priority in transportation funding growth only if it can provide excellent avia- These are not simply forecasts of the num- be given to maintenance of the existing sys- tion access. And it, can serve the region fair- bers of people, households and jobs which tem? ly, only if it provides that access to the will be in the region in a future year. People, Should measures to encourage reclamation south suburbs. households, and jobs imply houses, roads, of contaminated properties, including tax sewers, and parks. The forecasts thus rep- Location Drives Connecting Flights credits and limits on liability, be enacted? resent the Commission’s best estimate of Becuase of its central location and high Yes, said strong majorities of participants how activities and facilities will be distrib- concentration of jobs and population, the in two public workshops conducted by NIPC uted across the region: where new housing Chicago region is a critical location for con- in June and September of this year. The will be necessary and old housing may be- necting flights: workshops were held as part of an effort to come vacant, where new or expanded streets The recent Booz-Allen study, prepared for engage the region in a discussion of growth and sewers will be required, and where the City, forecasts an international growth choices facing us. Participants representing streams and wetlands will come under pres- that is higher than IDOT’s; and claims that local governments, state and federal agen- sure form growing population. The forecasts high ratios of connecting to O/D are not just cies, and civic and community organizations thus have implicit in them a generalized desirable, but necessary. were asked to respond to possible future de- land use plan for the region. It is critical The City of Chicago, in 1998, forecast con- velopment patterns, their probable con- that they be as realistic as possible in re- necting enplanements based on regional lo- sequences, and the tools it would take to flecting the trends and constraints of the cation; their connecting forecasts were high- bring them about. The broad choice which market, the influences of public policy, and er than IDOT’s. framed the discussions was this: should an- expectations of local governments. O’Hare’s current connecting is 54.7%, ticipated future growth continue along the We have previously described the process slightly under its past average. IDOT as- path of past trends or should efforts should being used to develop forecasts for the year sumed 50% connecting for O’Hare in 2001; 51% be made to moderate the physical decen- 2020 (NIPC Reports, January 5, 1996). In for the region. tralization of the region? March 1994, the Commission endorsed re- NIPC is not alone in the region in raising Aviation Growth Parallels IDOT Forecasts gional forecast totals of 9 million people, 3.4 these issues. In fact, it is hard to remember Since their national forecasts of 1994 (base million households, and 5.3 million jobs in a time when the future development of the for IDOT forecast), the FAA has generated 2020. These figures represent a 25 percent in- region has been discussed more widely or fer- five 12-year forecasts, five long-range na- crease in population and a 37 percent in- vently. Numerous civic and community orga- tional forecasts though 2020, and five ter- crease in employment from 1990 to 2020. By nizations have been developing analyses and minal area forecasts. way of comparison, between 1970 and 1990 the recommendations on transportation and de- All the FAA national forecasts are higher region’s population increased by only four velopment and encouraging discussion of re- than the study’s base forecast. percent and employment by 21 percent. The gional issues by their members and constitu- Although it continues to contest IDOT’s amount of land devoted to urban uses, how- ents. forecasts, the City and Chicago and its con- ever, increased by 34 percent during that The Commission’s immediate purpose in sultants are using forecasts that are nearly twenty-year period. In view of this finding conducting the workshops was to seek public identical. about land consumption, the forecasted fu- guidance in the development of new demo- The City and State are using IDOT socio- ture growth has the potential to add seri- graphic forecasts for the region. These fore- economic and aviation forecasts for all ously to pressures on the transportation sys- casts will be used in the preparation of the short- and long-term regional transportation tem, air and water quality, and agricultural Regional Transportation Plan for 2020. Draft planning. land. The Commission thus concluded that forecasts will be completed by early 1997. At Other aviation plans (Gary Airport Master alternatives to past patterns of growth had the same time, the Chicago Area Transpor- Plan; Booz-Allen forecasts for O’Hare Inter- to be presented to the region for discussion. tation Study (CATS) will complete a draft national) are consistent with IDOT forecasts. transportation plan. After a period of public A Preferred Development Pattern in North- Capacity Constraints Jeopardize Economic and review, the transportation plan will be test- eastern Illinois Aviation Growth ed for conformity with the requirements of On June 26, 1996, the Commission con- The ability of the region’s airports to ac- the Clean Air Act. Following additional op- ducted the first of two regional workshops commodate demand is a most-serious con- portunity for public comment, final fore- on alternative growth scenarios and their

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00045 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 H5136 CONGRESSIONAL RECORD — HOUSE July 23, 2002 implications. The intent was to assess how assumes (1) implementation of very strong source efficiency and quality of life of a much support there might be for different farmland protection policies in the agricul- dense community, including access to public development patterns and how much accept- tural protection zones in Kane, McHenry and transportation, while preserving high-qual- ance of their probable costs. It was hoped Will counties, (2) intensive population and ity natural surroundings. However, devel- that participants would set aside issues of employment growth within walking distance opers will find this kind of balanced develop- feasibility for the time being and respond to of selected transit stops in Chicago and the ment hard to do successfully if local govern- the question of what is the most desirable fu- inner suburbs, and (3) high employment ment does not address inefficiencies in pub- ture for the region. The workshop was at- growth through redevelopment in certain lic services and excessive regulations which tended by 127 people representing a broad built-up areas in Chicago, the inner suburbs, work against affordability by raising land spectrum of organizations and interests. Waukegan, and Joliet. Under this scenario, values and construction costs. Three general scenarios were presented. Chicago’s loss of population and employment Benjamin Tuggle, Field Office Supervisor, Each was designed to illustrate the outcome would be reversed. At the same time, the U.S. Fish and Wildlife Service: Making max- of a unique combination of public policies other sectors of the region would all gain imum use of existing intrastructure and es- with respect to transportation and commu- both people and jobs, though their rates of tablished urban areas is an important way of nity development. The broad patterns of new growth would be lower than under a continu- preserving high-quality air, surface water, household and job growth to which these sce- ation of trends. Conversion of farmland for and wetlands in . . . narios would lead are shown in the maps development and urban stress on water re- below. Participants were not asked to ex- sources would be at lower levels than the IF YOU BUILD IT, WE WON’T COME—THE COL- press a preference among the scenarios other two scenarios, but still significant. LECTIVE REFUSAL OF THE MAJOR AIRLINES themselves, but to evaluate the relative Similarly, automobile use would increase TO COMPETE IN THE CHICAGO AIR TRAVEL importantance of the impacts which each and transit ridership decrease, but at lower MARKET would have on communities and the natural rates. Because both jobs and population AN ANALYSIS OF THE PER SE VIOLATIONS OF environment. Questions to the participants would increase in the communities with the FEDERAL ANTITRUST LAWS BY MAJOR AIR- concerned the importance of land develop- greatest low-income population, jobs-hous- LINES IN THEIR REFUSAL TO COMPETE WITH ment patterns which would (1) help preserve ing balance would change only slightly. EACH OTHER IN FORTRESS HUB MARKETS— farmland, (2) encourage the use of public The redevelopment scenario was designed WITH METROPOLITAN CHICAGO AS A CASE EX- transit, (3) protect high-quality watersheds to simulate the effect of efforts to moderate AMPLE—MAY 2000 from the impacts of urbanization, and (4) the worst unintended consequences of recent The Suburban O’Hare Commission promote affordable housing close to centers trends. Two important conclusions emerge The Suburban O’Hare Commission (SOC) is of job growth. from an examination of the scenario results: Continued Trends. This is the ‘‘baseline’’ an inter-governmental agency representing Given NIPC’s overall forecasts, economic more than one million residents who live in scenario which assumes the least change, in growth in northeastern Illinois need not be terms of public policy, from recent condi- communities surrounding O’Hare Airport. an either-or situation. Even with deliberate SOC’s leadership is made up of mayors and tions. Only limited highway and rail transit efforts to encourage reinvestment in the ma- capacity would be built beyond what is cur- other officials who are both advocates for ture core communities, the balance of the re- the quality of life and health of their com- rently committed for funding. Future de- gion can sustain a relatively high level of mand for aviation service would be met at munities and business persons who are con- growth. cerned about the economic health of the re- O’Hare and Midway. The broad pattern of Under conditions of high overall growth, gion. Over the past several years SOC has low-density dispersal of jobs and households managing negative environmental con- conducted a number of studies relating to would continue. Households and jobs in Chi- sequences will be very difficult even if the the environmental, safety, public health, and cago and some inner suburbs would continue trend of decentralized, low-density develop- economic issues surrounding air transpor- to decline while they would increase in the ment is moderated. rest of the region. The largest number of new Following the presentation of the sce- tation in the Chicago metropolitan region. This current (SOC) report focuses on one of jobs would be located in suburban Cook narios, a panel of five experts on aspects of the significant economic issues relating to County, and DuPage County would gain jobs the region’s development commented on the air transportation—monopoly power and but as a slower rate. The four outer counties alternatives and on issues related to their high monopoly-supported air fares—and the would show the greatest percentage gains in implementation. These are some of the high- legality of the Fortress Hub system under employment. Household growth would be lights of their comments: strongest in the middle ring of suburbs. The Barry Hokanson, Director of Planning, the nation’s antitrust laws. However, as is loss of farmland would be substantial, as Lake County: Lake County is expected to ex- discussed in the report, the major airlines’ would the negative impact of urban densities perience high growth under any one of the drive for preservation and expansion of their on lakes and streams. Automobile use would scenarios. While the county has programs to Fortress Hub system (especially at Fortress continue to increase and transit use to de- meet the demands on resources and services O’Hare)—and their corresponding refusal to cline. The separation of affordable housing generated by growth, the multiplicity of compete in each other’s Fortress Hub mar- from low-income jobs would continue to in- local governments makes the translation of kets—creates serious economic, social, and crease. regional projections into coordinated local environmental harm in broad areas of the South Suburban Airport. The central as- planning difficult. There are strong voices in metro Chicago region. sumption of this scenario is that future need Lake County advocating constraint on new PREFACE for additional aviation capacity would be transportation capacity as a means of lim- In the past several years there have been provided at the proposed south suburban air- iting growth and encouraging mature-area numerous congressional hearings and media port. Otherwise, the scenario makes essen- reinvestment. stories about a phenomenon in the airline in- tially the same land use and transportation David Schulz, Director, Infrastructure dustry known as ‘‘Fortress Hubs’’ and the policy assumption as the trends alternative. Technology Institute, Northwestern Univer- problem of high monopoly supported airfares Employment and population in Chicago sity: The outward movement of households is charged to airline passengers traveling from would increase, although the city’s regional driven by a variety of forces having to do or through these Fortress Hubs. share would decline slightly. Job growth with the quality of schools, perceptions of However, most of the attention of Con- would be lower than under existing trends in safety, tax levels, and job availability. gress, the Administration, and the media has the northern and western parts of the region Transportation systems do not induce people focused on two narrow facets of the Fortress and substantially higher in south Cook and to move but influence where they move. Con- Hub problem (1) restrictions on access by so- Will counties. Household growth would be straining the transportation system will called ‘‘low cost’’ ‘‘new entrant’’ carriers to similar to that expected under a continu- simply force people to move farther out past a few of the Fortress Hubs, and (2) the alle- ation of trends. Conversion of agricultural the perceived zone of congestion and will gations of predatory pricing by a dominant land would be extensive, particularly in Will thus worsen the problem of dispersal rather major airline against a new low-cost entrant. County, as would development pressure on than curing it. But this narrow focus has ignored a much lakes and streams. The development of the Rusty Erickson, Director of Development, more fundamental question: Does the Big airport could have a positive effect on jobs- City of Aurora: Aurora has benefited from Seven Airlines Fortress Hub geographic allo- housing balance and on redevelopment by the decentralizing trend in the region. Con- cation of markets—and their corresponding bringing employment to a portion of the re- tinued growth is necessary to provide qual- refusal to compete in each other’s Fortress gion which is now relatively job-poor. ity schools and other services to residents. It Hub markets—violate federal antitrust laws? Redevelopment and Infill. This scenario is important that new suburban growth be Virtually ignored by Congress and the Ad- represents a deliberate attempt to moderate concentrated in areas with full public serv- ministration has been the concerted refusal the trend of dispersed development and to ices. Low-density development in rural areas of the major airlines—the so-called ‘‘Big encourage reinvestment in mature commu- will destroy the open countryside which is a Seven’’ (Northwest, United, American, Delta, nities. Like the trends scenario, this alter- strong quality-of-life value. US Air, Continental, and Trans World)—to native assumes limited investment in new Frank Martin, President, Shaw Homes Inc: compete with their fellow major airlines in surface transportation and satisfaction of fu- There is a market for residential develop- each other’s Fortress Hub cities. This study, ture aviation requirements at the existing ment which integrates the natural and built prepared by the Suburban O’Hare Commis- regional airports. In addition, the scenario environments and which provides the re- sion (SOC), focuses on the collective refusal

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00046 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5137 of the Big Seven to compete with each other donment by members of the Big Seven (other a campaign to oppose construction of a new and examines the question as to whether this than United and American) of any signifi- South Suburban Airport. geographic allocation of Fortress Hub mar- cant role at O’Hare Airport and (2) the an- 7. Federal Officials Have Participated in kets by the Big Seven violates federal anti- nouncement by the Big Seven and its allied and Supported the Big Seven’s Illegal Mo- trust laws. Does the Big Seven’s refusal to in the Air Transport Association that they nopolistic Arrangement to Refuse to Com- compete in Metropolitan Chicago—their re- would refuse to use a new South Suburban pete in the Chicago Market. Not only have fusal to use the South Suburban Airport: ‘‘If Regional Airport. In the popular jargon of federal funds been used to support the major you build it, we won’t come.’’—violate fed- the media, the Big Seven have said ‘‘If you airlines illegal monopolistic arrangement to eral anti-trust law? build it, we won’t come.’’ refuse to compete in the Chicago market, The SOC study also focus on the Metropoli- In reality, this collective refusal to use a but it appears that federal officials within tan Chicago market as a case study of the new regional airport is nothing more than a the Administration have worked with the Big Seven’s de facto arrangement not to manifestation of the Big Seven’s horizontal major airlines and Chicago to assist in this compete with their fellow major airlines in market agreement not to compete in any antitrust arrangement to prevent the devel- each other’s Fortress Hub cities. A glaring significant way with United and American in opment of a new airport in metropolitan Chi- example of this concerted refusal by the their dominant Chicago market. This refusal cago. For the last several years, federal ad- major airlines to compete in the fellow by major airlines such as Delta, Northwest, ministration officials—several of whom are major airlines’ Fortress Hub markets can be USAir, and Continental to use new metro- former Chicago officials who worked for the found in the decision of the major airlines to politan Chicago airport capacity to compete City of Chicago—have blocked development boycott the proposed new South Suburban in metropolitan Chicago is but an individual of the new South Suburban Airport through Airport in metropolitan Chicago. The major example of the per se antitrust violation of a series of spurious legal claims that federal airlines’ ‘‘If you build it, we won’t come’’ ar- allocating geographic markets by the major law requires that there be a ‘‘consensus’’ be- gument is simply a manifestation of the ma- airlines. ‘‘If you build it, we won’t come’’ is tween the State of Illinois and the City of jors’ overall horizontal geographic restraint a blatant violation of the federal antitrust Chicago before a new metropolitan airport of major markets across the nation—and laws. can be constructed. No such legal require- particularly in metropolitan Chicago. 5. The City of Chicago’s Participation in ment exists. Opposing New Capacity and in Assisting Big Because of the active participation of key THE FINDINGS OF THIS STUDY Seven in Their Refusal to Use the New South figures in the current administration in pro- The study’s findings include: Suburban Airport is Not Immune from Anti- moting and supporting the continued block- 1. De Facto Geographic Allocation of For- trust Law Prosecution. The available evi- age of new airport development in metropoli- tress Hub Markets by the Big Seven. The dence is clear that the City of Chicago and tan Chicago—in concert with the illegal re- heart of the monopoly problem in Fortress its agents have been active participants in fusal of the major airlines to compete in the Hub markets—and the resultant high monop- helping the Big Seven Airlines in their re- Chicago market by using the new airport— oly-inducted air fares—has been the de facto fusal to compete in the Chicago market and the impartiality and lack of bias of the Ad- agreement among the Big Seven to stay out their refusal to use the proposed South Sub- ministration in conducting law enforcement of each other’s Fortress Hub markets with urban Airport. Absent express approval by in this area is legitimately suspect. The At- any competitively significant level of entry the State of the monopolistic practice, polit- torney General should be asked to appoint into that market. ical subdivisions of the State—like the City an independent prosecutor to conduct the 2. The Fortress Hub Monopoly Dominance of Chicago—are not free to violate the anti- antitrust investigation and to undertake all Geographic Allocation by the Big Seven is trust laws under the guise of state action. appropriate civil legal actions needed to cor- Likely Costing the Nation’s Air Travelers While Congress has made municipalities rect the ongoing antitrust violations. Billions of Dollars Annually. There is an immune from damages for violations of the 8. Defining the Market Under Monopoly overwhelming body of evidence that—be- antitrust laws, Chicago and its officials are Control and in Need of New Competition— cause of the Fortress Hub monopoly domi- not immune from prosecution for their at- The Hub-and-Spoke Market. The heart of the nance of one of two of the Big Seven at many tempts to assist the Big Seven in their re- monopoly overcharges to travelers in the metropolitan areas across the country—the fusal to compete in the metro Chicago mar- Chicago market is the absence of competi- Big Seven airlines are able to charge exces- ket and in United and American’s attempts tion in the ‘‘hub-and-spoke’’ market in Chi- sive air fares totaling billions of dollars a to monopolize that market. cago. None of the other Big Seven will come year. The principal victims of this monop- 6. It Appears That Federal Taxpayer Funds into the Chicago market to establish a com- oly-induced Fortress Hub excess fares are: (1) May Have Been Used to Suppress Competi- petitive hub-and-spoke operation. the time-sensitive business traveler who tion and Violate the Antitrust Laws in the In an attempt to expand their monopoly pays unrestricted coach fares and (2) the so- Chicago Market. United and American (the and prevent new competition from entering called ‘‘spoke’’ passenger who must connect dominant carriers at O’Hare)—along with the Chicago market, United and American— through one of the ‘‘Fortress Hubs’’ monop- other major airlines through the Air Trans- along with their surrogate allies—have oly tithe American consumer: billions of dol- port Association—have engaged in a con- sought to distract attention by suggesting a lars per year in excess fares—hundreds of certed effort to defeat construction of a new south suburban airport in metro Chicago as millions per year in metropolitan Chicago South Suburban Airport, an airport that a ‘‘point-to-point’’ airport—not unlike Mid- alone. would provide significant capacity opportu- way. United and American argue that O’Hare 3. The Big Seven’s De Facto Geographic Al- nities for major new competition to enter should be the only ‘‘hub-and-spoke’’ airport location of Major Air Travel Markets in the the Chicago market. United executives have in metropolitan Chicago. Nation through the Development of ‘‘For- stated their goal as ‘‘Kill Peotone’’. By shaping the argument in this fashion, tress Hubs’’ Constitutes a Per Se Violation United and American have been assisted in United and American guarantee that they of Federal Antitrust laws. Little discussion their ‘‘Kill Peotone’’ (and thus kill new com- will be allowed to continue and dramatically or analysis has been undertaken by Congress petitive capacity) campaign by representa- expand their Fortress Hub monopoly at or the Administration as to whether this tives of the City of Chicago—including Chi- O’Hare. According to their arguments, the concerted refusal by the Big Seven to com- cago’s consultants have been paid several lion’s share of all the origin-destination traf- pete in their fellow major airlines’ Fortress million dollars in fees to assist Chicago and fic in the region—and all of the connecting Hub markets—which costs consumers bil- United and American in expanding O’Hare and international traffic—should go to the lions annually—constitutes a violation of and in obstructing development of a new sole hub-and-spoke airport in the region: federal antitrust laws. Based on clear and re- South Suburban Airport. O’Hare. Any minor overflow of ‘‘point-to- peated Supreme Court precedent, it clearly Much of the money paid to these consult- point’’ origin-destination traffic that a dra- does. The Big Seven’s de facto geographic al- ants has come from either: (1) federal Pas- matically expanded O’Hare and Midway location of major air travel markets in the senger Facility Charge (PFC) funds, (2) fed- could not handle (if any) could be addressed Fortress Hub through the development of eral Airport Improvement Program (AIP) in a small ‘‘point-to-point’’ airport like the ‘‘Fortress Hubs’’ constitutes a per se viola- funds, or (3) federally subsidized municipal South Suburban Airport or Gary. tion of the antitrust laws. The Supreme airport bonds (‘‘GARBs’’ General Airport What United and American gloss over is Court has uniformly condemned arrange- Revenue Bonds). Thus, we have the following the fact that there is plenty of competition ments to carve up horizontal markets as per spectacle—not only are the airlines and Chi- in the Chicago market in point-to-point se violations of section 1 of the Sherman cago engaged in a monopolistic arrangement service. The real lack of competition in the Act. See e.g., Palmer v. BRG Group of Geor- designed to prevent new competition from Chicago market is in the lack of additional gia, 498 U.S. 46, 49 (1990); United States v entering the Chicago market (i.e., through hub-and-spoke competition to challenge the Topco Associates, Inc., 405 U.S. 596, 607–609 the new airport)—but much of the money to hub-and-spoke duopoly of United and Amer- (1972). implement this illegal arrangement is com- ican at Fortress O‘Hare. It is this market 4. The Big Seven’s Explicit Refusal to Com- ing from federal taxpayer dollars. The GAO dominance of the hub-and-spoke market— pete In Metropolitan Chicago: If You Build and the Department of Justice should be not the point-to-point—where lack of com- It, we Won’t Come. In the metropolitan Chi- asked to conduct an independent audit of all petition gouges the business traveler and cago air travel market, the illegal collective PFC, AIP, and GARB expenditures at O’Hare those travelers from ‘‘spoke’’ cities who refusal of the Big Seven to compete is mani- to determine if any federal funds were used must use a single Fortress Hub. There is a fested by two actions: (1) the de facto aban- as part of a campaign to ‘‘Kill Petone’’—i.e., desperate need for new competitive hub-and-

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00047 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 H5138 CONGRESSIONAL RECORD — HOUSE July 23, 2002 spoke service in the Chicago market and the (O’Hare). Any minor overflow of point-to- 2. The United States Attorney General and place to put that hub-and-spoke is the new point origin-destination traffic that a dra- the United States Attorney should bring a South Suburban Airport. matically expanded O’Hare and Midway civil action in federal court to enjoin and 9. Beyond Antitrust Law Enforcement, could not handle (if any) could be addressed break up the illegal Fortress Hub geographic Federal Transportation Officials Play a in a small point-to-point airport like the market allocation by the Big Seven and pro- Major Antitrust Policy Role—In Either Pro- South Suburban Airport or Gary. hibit the collective refusal by the Big Seven moting Monopoly Abuses or Encouraging Paralleling this argument is the claim by to compete in each other’s Fortress Hub Competition—By Their Decisions on the Use the airlines’ allies that a new runway at markets. Included in the relief should be a of Federal Taxpayer Funds. Not only have O’Hare is needed to ‘‘reduce delays.’’ They requirement that members of the Big Seven federal officials blocked development of new claim that a new runway would not increase halt their collective refusal to use a new competition by blocking a new airport, fed- O’Hare capacity but simply reduce delays. South Suburban Airport in metropolitan eral approval of federal expenditures for Yet an analysis using FAA’s own capacity Chicago and a requirement that competitive major physical changes at O’Hare will exac- analysis standards and criteria demonstrates hub-and-spoke operations be established in erbate the monopoly power of American and that a new runway at O’Hare would substan- metro Chicago to compete with United and United in this region. tially increase the capacity of the airport. American. Chicago’s so-called ‘‘World Gateway’’ pro- This capacity increase at O’Hare would dra- 3. The State Attorneys General should ini- gram has been designed in consultation with matically expand American’s and United’s tiate civil damage actions to recover treble United and American to enhance and expand hub-and-spoke monopoly at Fortress O’Hare. damages for the billions of dollars per year in excess monopoly profits in airfare over- United and American’s hub-and-spoke sys- Further, it would virtually doom the eco- charges that have been charged at the Big tem at O’Hare. Chicago’s World Gateway nomic justification for the new south subur- Seven’s Fortress Hubs. The Illinois Attorney proposal is not designed to bring new hub- ban airport because the new ‘‘delay’’ run- General should bring suit to recover treble and-spoke competition into O’Hare or the way—once built—could easily be used to damages for the hundreds of millions of dol- Chicago market to compete with United and carry the new additional traffic for which American. lars in monopoly overcharges by American the new airport was intended. Simply by and United at Fortress O’Hare. On a multiple Thus, Chicago’s World Gateway proposal piecemealing incremental expansion at will enhance and expand United and Ameri- year basis in Illinois alone, the treble dam- O’Hare, Chicago and American and United ages recoverable for consumers would exceed can’s Fortress Hub monopoly in the Chicago can keep the region under the thumb of the market. Since the physical design proposed several billion dollars. Fortress O’Hare monopoly. 4. The GAO and the Department of Justice by United and American and Chicago can 12. United’s and American’s Fight to Pre- only go forward if federal Transportation De- should undertake an immediate and detailed serve and Expand Fortress Hub Monopoly audit of all federal funds that may have been partment officials approve federal taxpayer Power at O’Hare Has Grave Social, Eco- used to further the refusal of the other mem- funds to subsidize the project, federal offi- nomic, Public Health, and Quality of Life bers of the Big Seven to compete with United cials are being asked to use billions of dol- Consequences for the Region. Much of the and American in metropolital Chicago—par- lars in federal taxpayer funds to expand and discussion in this paper focuses on the bil- ticularly the campaign by the airlines and enhance the illegal Fortress Hub monopoly lions of dollars in monopoly induced over- Chicago to ‘‘Kill Peotone.’’ of American and United at O’Hare. No fed- charges inflicted on air travelers—particu- 5. The United States Department of Trans- eral officials appear to be examining whether larly the business traveler—as a result of the portation should withhold any further ap- spending 10 billion dollars (much of it from Fortress Hub monopoly system. But these provals of federal funds for expansion of the federal taxpayers) at O’Hare makes eco- monopoly abuses also inflict other serious United and American duopoly at Fortress nomic sense when much more new capacity harm on a variety of important public and O’Hare. to support competitive hub-and-spoke oper- social interests. 6. The House and Senate Judiciary Com- ations can be constructed at a new metro- The consequences of these abuses of mo- mittees should conduct immediate hearings politan airport for less than half the cost. nopoly power for the metro Chicago region on these issues. Nor are federal officials examining whether are stark and severe: 7. Our Governor and our two United States the use of billions of dollars of federal tax- O’Hare area communities will be subjected Senators, the Speaker of the House, and our payer funds to expand United and Ameri- to more noise, more air pollution, and more Illinois Attorney General should be respect- can’s hub-and-spoke duopoly at Fortress safety hazards because—under the United, fully asked what specific actions they will O’Hare—essentially using federal taxpayer American, and Chicago proposal—all the take to (1) break up the Fortress Hub sys- funds to subsidize expansion of monopoly international, all the transfer traffic, and tem—particularly Fortress O’Hare; (2) bring power—is a proper use of federal funds. the lion’s share of the origin-destination new hub-and-spoke competitors into the Chi- 10. The Lifting of the Slot Limits at traffic are jammed into an already over- cago market; (3) recover the billions in ex- O’Hare Will Not Provide Sufficient Capacity stuffed O’Hare. Any new airport—even if cess monopoly profits from the Fortress to Allow Significant New Competition to built—will simply receive the origin-destina- O’Hare overcharges; (4) prevent the Big Enter the Chicago Area Market. Much of the tion overflow (if any) from a vastly expanded Seven from continuing to refuse to use the debate over the recent passage of the federal O’Hare and Midway. new capacity provided to the South Subur- reauthorization of the Federal Aviation Pro- South Chicago and south suburban commu- ban Airport; and (5) assemble the federal and gram involved the issue of lifting ‘‘slot re- nities will continue to suffer serious eco- state resources needed to rapidly build the strictions’’ at LaGuardia and Kennedy air- nomic decline because the South Suburban South Suburban Airport. 8. Our Governor should hold fast to his ports in New York and O’Hare in Chicago. Airport—which should have been built years promise not to permit any additional run- One of the principal asserted justifications ago—lies hostage to the unholy alliance ways at O’Hare. To do otherwide would sim- for lifting the slots was to provide access to struck between the monopoly interest of ply enhance and expand the monopoly power so-called ‘‘new entrant’’ carriers that would United and American and the political pique of Fortress O’Hare and doom the opportunity presumably provide competition for the of Chicago’s mayor. dominant carriers at O’Hare and force prices to bring new competition into the region at down. Yet FAA’s own capacity studies at RECOMMENDATIONS the South Suburban Airport. O’Hare demonstrate that O’Hare is already Based on the facts and the antitrust law 9. The two candidates for President of the beyond acceptable limits of capacity and can analysis contained in this report, the Subur- United States—both of whom have likely re- provide only marginal capacity access—if ban O’Hare Commission recommends the fol- ceived large campaign contributions from any. lowing actions: the Big Seven—should be respectfully asked In addition, as predicted by Senator Peter 1. The United States Attorney General and what they will do to break up the Fortress Fitzgerald and Congressman Henry Hyde, the United States Attorney for the Northern Hub system nationally and Fortress O’Hare any arguable incremental theoretical capac- District of Illinois should initiate an inves- in particular. Vice President Gore in par- ity at O’Hare will rapidly be consumed by tigation into the collective refusal of the Big ticular should be asked why his administra- United and American—expanding their mo- Seven airlines to compete against each other tion has for the past eight years looked the nopoly. As stated by the Illinois Department in each other’s Fortress Hub Markets. In- other way while the Big Seven has used vio- of Transportation, the only effective way to cluded in the investigation should be an ex- lations of the nation’s antittust laws to lit- provide sufficient capacity for major new amination of the role of third party collabo- erally steal billions of dollars from American competition in the Chicago market is to rators in the antitrust violations—including consumers. Mr. Gore should also be asked to build major new capacity in the metropoli- the City of Chicago and other private organi- explain why his administration has literally tan Chicago area. zations and individuals who have assisted blocked development of new competitive ca- 11. A New Runway at O’Hare is Intended to the Big Seven (including United and Amer- pacity in metro Chicago—i.e., a new South Increase Capacity to Expand United and ican) in perpetrating these violations. Be- Suburban Airport—at every turn Finally, American’s Monopoly Power. The airlines’ cause of the involvement by federal officials Mr. Bush should be asked specifically what current public relations argument is that the in affirmatively assisting the Big Seven and he will do to build the South Suburban Air- lion’s share of all the origin-destination traf- the City of Chicago in keeping significant port and break up Fortress O’Hare. fic in the region (and all of the connecting competition out of Chicago, the Attorney INTRODUCTION—RELEVANT QUOTATIONS and international traffic) should go to the General should be asked to consider the ap- Alfred Kahn, the ‘‘father’’ of airlines de- sole hub-and-spoke airport in the region pointment of independent counsel. regulation:

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00048 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5139 Anyone who says applying antitrust laws it has reached a point where we can’t pay it In those instances where the new low-cost is the same as re-regulation is simply igno- anymore.’’ airlines could physically enter the Fortress rant. To preserve competition we need the The burden of high fares is even greater on Hub market, the dominant hub airlines are antitrust laws and vigorous enforcement of small companies. John W. Galbraith, presi- alleged to have engaged in predatory pricing the antitrust laws. dent of Twin Advertising, a small company to drive the so-called ‘‘low-cost’’ ‘‘new-en- When we deregulated the airlines, we cer- based in Rochester that had $2 million in bil- trant’’ competitors out of the market. tainly did not intend to exempt them from lings last year, said he was thinking about But while Congress and the Administration the antitrust laws. dropping clients outside the city because the have focused on these elements, they have Gordon Bethune, Chairman and CEO, Con- high cost of visiting them cancels out the ignored what might be called ‘‘the elephant tinental Airlines: profit he makes from having their business. in the corner’’ aspect of the Fortress Hub ‘‘Continental chief says hub competition ‘‘Basically, what the airlines have done to issue. Virtually ignored in these debates has over,’’: companies like ours is kept us from grow- been the role of the so-called ‘‘major’’ air- Competition among airlines for dominance ing,’’ he said. (New York Times January 11, lines—i.e., the so-called ‘‘Big Seven’’ con- at major U.S. airports is virtually a thing of 1998) trolling members of the trade group known the past, the chairman of Continental Air- United States Supreme Court on hori- as the Air Transport Association (ATA)—in lines said on Monday. zontal market allocations as per se violations creating and maintaining the Fortress Hub Continental chief executive Gordon Be- of federal antitrust law: system. While Congress and the U.S. DOT One of the classic examples of a per se vio- thune, in a break from the usual industry talked about the anti-competitive aspects of lation of § 1 [of the Sherman Antitrust Act] line that competition reigns supreme, said keeping the new ‘‘low-cost’’ airlines out of is an agreement between competitors at the the large air carriers have staked out their the Fortress Hub market, little attention same level of the market structure to allo- respective hubs and will be difficult to dis- has been directed toward the issue of wheth- cate territories in order to minimize com- lodge. er the Big Seven’s Fortress Hub system is petition. . . . This Court has reiterated time ‘‘In the last 20 years, the marketplace of itself a violation of the nation’s antitrust the United States has been sorted out. Amer- and time again that ‘[h]orizontal territorial limitations . . . are naked restraints of trade laws. ican (Airlines) kind of controls Dallas-Fort The purpose of this study is to: (1) analyze with no purpose except stifling of competi- Worth and Miami and we’ve got Newark, the known facts of the Fortress Hub system; tion.’ Such limitations are per se violations Houston and Cleveland. Delta’s got At- (2) determine if the known facts demonstrate of the Sherman Act. (The United States Su- lanta,’’ Bethune said in remarks to the Na- the existence of a violation of federal anti- preme Court in the 1990 decision in Palmer v. tional Defense Transportation Association trust laws, (3) examine the role of the ‘‘Big BRG Group of Georgia, 498 U.S. 46, 49 (1990).) annual conference. Relevant Provisions of The Sherman Act: Seven’s’’ conduct in the Chicago air travel U.S. Senator Mike Dewine: Every contract, combination in the form of market as a case study illustration of their During the last year, there has been rising trust or otherwise, or conspiracy, in re- collaborative conduct nationally in main- concern among some of the smaller airlines straint of trade or commerce among the sev- taining the national Fortress Hub network, that the seven largest passenger carriers in eral States, or with foreign nations, is here- and (4) propose remedial action. the U.S. are no longer competing against by declared to be illegal. Every person who The findings of this study unequivocally each other. Essentially, the argument goes, shall make any contract or engage in any demonstrate that the Fortress Hub system the ‘‘Big Seven’’ have carved up the U.S. combination or conspiracy hereby declared maintained by the Big Seven—alone and aviation market... to be illegal shall be deemed guilty of a fel- through their trade organizations, the Air CEOs of 16 major airlines tell Illinois’ Gov- ony, and, on conviction thereof, shall be pun- Transport Association—is an illegal cartel in ernor that they will not use new airport in ished by fine not exceeding $10,000,000 if a violation of the Nation’s antitrust laws. metropolitan Chicago: corporation, or, if any other person, $350,000, 2. Geographic Market Allocation through We are writing to express our concerns or by imprisonment not exceeding three Fortress Hubs—Mutual Protection of For- about further planning and development of years, or by both said punishments, in the tress Hub Dominance Against New Competi- the so-called Third Chicago Airport. It is our discretion of the court. (Title 15 United tion from Other Big Seven Airlines. understanding that the State of Illinois will States Code § 1) There is overwhelming and incontroverible not proceed with the construction of a third Every person who shall monopolize, or at- evidence that, since ‘‘deregulation’’ in 1978, airport without the support of the airlines. tempt to monopolize, or combine or conspire the market airlines have carved up major This letter is intended to inform you that with any other person or persons, to monopo- areas of the Nation into territories of geo- the airlines oppose further planning and con- lize any part of the trade or commerce graphic market dominance known as ‘‘For- struction of this facility. . . among the several States, or with foreign na- tress Hubs’’. Under this Fortress Hub ar- USA Today: tions, shall be deemed guilty of a felony, rangement, one or two major airlines are In the two decades since deregulation and, on conviction thereof, shall be punished ceded geographic market dominance and forced the government to stop telling car- by fine not exceeding $10,000,000 if a corpora- other major airlines tactitly agree not to riers what fares to charge and which cities to tion, or, if any other person, $350,000, or by compete in that geographic market. serve, the big airlines have built up ‘‘fortress imprisonment not exceeding three years, or Thus Delta has Fortress Hubs at Atlanta hubs’’ where, without meaningful competi- by both said punishments, in the discretion and Cincinnati, USAir at Pittsburgh, North- tion, they alone decide where to go, how of the court. (Title 15 United States Code § 2) west at Minneapolis and Detroit, American often to go there and how much to charge. The several district courts of the United at Dallas-Ft. Worth, American and United at What travelers suspect is true: Airfares are States are invested with jurisdiction to pre- Chicago O’Hare, etc. The other Big Seven climbing fast, and nowhere is the situation vent and restrain violations of sections 1 to airlines—either implicitly or by explicit worse than at the hubs for the nation’s larg- 7 of this title; and it shall be the duty of the agreement—have agreed to stay out of each est airlines. several United States attorneys, in their re- other’s Fortress Hub markets in any signifi- Business travelers have been especially spective districts, under the direction of the cant way. Thus, for example, Delta remains hard hit at hubs. Attorney General, to institute proceedings unchallenged by United, Northwest, and oth- And almost everywhere, hub fares, espe- in equity to prevent and restrain such viola- ers in Atlanta. In turn, Delta doesn’t provide cially for business fliers, are soaring. tions. (Title 15 United States Code § 4) significant challenge to United and Amer- Even when low-fare carriers enter a hub [A]ny person who shall be injured in his ican at O’Hare or to Northwest at Min- market, they usually control so little of the business or property by reason of anything neapolis and Detroit. Similar de facto, quid traffic that they can’t do much to bring fares forbidden in the antitrust laws may sue pro quo non-compete accommodations by the down. therefor in any district court of the United major airlines can be found at virtually New York Times: States in the district in which the defendant every Fortress Hub where one or two airlines Business travelers feel particularly abused resides or is found or has an agent, without have dominant control of the local market. because they account for more than half of respect to the amount in controversy, and As stated by one congressional witness: airline revenue. For in the through-the-look- shall recover threefold the damages by him ‘‘The major airlines . . . developed high ing-glass world of airline pricing, the fares sustained, and the cost of suit, including a market share hubs in large sections of the paid by leisure travelers, who book as long reasonable attorney’s fee. (Title 15 United country. Given the market power that they as a month in advance and stay over a week- States Code § 15) have developed, the major airlines have end night, have in many cases declined, 1. Focusing on the Elephant in the Corner. raised prices far above the competitive level while last-minute fully refundable fares, Over the last decade there have been exten- in their market hubs (as study after study which are most often paid by business trav- sive congressional hearings and much media has shown). Furthermore, the major airlines elers, are skyrocketing. coverage of so-called ‘‘Fortress Hubs. But defend their high price hub markets with ‘‘The carriers always say that the business much of the attention has focused on two as- predatory pricing. These markets are de- traveler is inelastic,’’ said Peter M. pects of the Fortress Hub phenomenon: scriptively called ‘fortress hub’s’. Buchheit, director of travel and meeting Various ‘‘constraints’’ that the so-called ‘‘There are two things the major airlines services for the Black & Decker Corporation, ‘‘low-cost’’ ‘‘new-entrant’’ airlines (e.g., are doing to monopolize large segments of which spent $18 million on air tickets for its Spirit Vanguard) say have prevented these the country. First, they work hard to see American employees last year. ‘‘We need to new entrants from entering and competing that entry to their large markets remains travel so we will pay whatever it costs. But in Fortress Hub markets; and closed or difficult. Second, if a discounter

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00049 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 H5140 CONGRESSIONAL RECORD — HOUSE July 23, 2002 enters a few of their markets they use preda- nent in the preservation of the Fortress Hub dent of Twin Advertising, a small company tory pricing to drive the discounters out of problem in metropolitan Chicago. Moreover, based in Rochester that had $2 million in bil- business.’’ any arguable minor increment of available lings last year, said he was thinking about The broad reach of this Fortress Hub sys- capacity at O’Hare will rapidly be consumed dropping clients outside the city because the tem is illustrated in a table prepared by the by United and American. There simply is not high cost of visiting them cancels out the National Association of Attorneys General. enough room at O’Hare to allow a major new profit he makes from having their business. CITIES WHERE FORTRESS HUBS ARE LOCATED competitor to gain the ‘‘critical mass’’ to ‘‘Basically, what the airlines have done to companies like ours is kept us from grow- City and Dominant Airline compete with United and American. The Illinois Department of Transportation ing,’’ he said. (New York Times January 11, Atlanta, Delta; Chicago O’Hare, United and has repeatedly emphasized its opinion that 1998) American; Cincinnati, Delta; Dallas, Amer- monopoly dominance at O’Hare results in Put bluntly, the Big Seven has used their ican; Detroit, Northwest; Houston Inter- higher airfares paid by Chicago area trav- monopoly power at Fortress Hubs to lit- national, Continental; Minneapolis/St. Paul, elers and that major new regional airport ca- erally extort billions of dollars annually Northwest; Denver, United; Pittsburgh, US pacity is essential to breaking the monopoly from captive travelers—most often time sen- Air; St. Louis, TWA. stranglehold of Fortress O’Hare: sitive business travelers living in these air- 3. Monopoly Fare Premiums at Fortress ‘‘There are numerous examples besides lines’ own Fortress Hub communities. Hubs. these to demonstrate that without the com- 5. The Second Biggest Loser in the For- There is a large body of evidence and ex- petition of a new entrant, the fares at Chi- tress Hub Monopoly System is the ‘‘Spoke’’ pert opinion—as articulated by the General cago are increasing or remain inordinately Passenger. The second biggest loser from this Fortress Accounting Office, USDOT, business travel high.’’ organizations, and the Illinois Department of ‘‘We encourage and support your Hub monopoly system is the so-called Transportation—that the dominance of these [USDOT’s] focus on anticompetitive prac- ‘‘spoke’’ passenger in the small to medium major markets by one or two carriers results tices that are injuring commerce, smaller size community that serves as the ‘‘spoke’’ to a single large metropolitan Fortress Hub. in a monopolistic ability to raise fares be- cities, and consumers in Illinois and Because the dominant Big Seven airline at a yond the air fares that would exist if there throughout the region serviced by O’Hare Fortress Hub has no competition at its hub, was strong competition in these Fortress Airport as the hub of United Airlines and it is free to charge the spoke passenger—who Hub markets. As stated by the GAO as far American Airlines. We strongly urge, how- must use the hub to get to his or her destina- back as 1990: ever, that the enforcement policies should be ‘‘Airports where one or two carriers handle tion—excessive monopoly fares. part of a broader initiative that will insure The Illinois Department of Transpor- most of the enplaning traffic have higher that there will be airport capacity available fares than airports where the traffic is less tation—again emphasizing the lack of capac- in the Chicago area that will provide new ity to handle both new competition and serv- concentrated. Moreover, the data show that airline entrants the opportunity to compete fares tend to rise as concentration increases. ice to smaller and mid-size communities— with United and American. Additional air- has stated the problem as follows: While many factors can influence fare port capacity is vital to restoring airline changes, the evidence that we have collected ‘‘The dominant airlines are diminishing competition in the Chicago, Illinois, and and even abandoning service to smaller Illi- strongly suggests that fares and concentra- Midwestern markets.’’ tion at an airport are related. Fares are nois and Midwestern cities in favor of routes ‘‘There is simply no room at O’Hare for that are more lucrative or that increase the higher at concentrated airports than at rel- new entrant airlines to pose competitive atively less concentrated ones, and the evi- power of their hub networks.’’ challenges to the dominant airlines.’’ Because the dominant O’Hare airlines dence suggests that the gap is increasing.’’ 4. Time Sensitive Business Traveler Big- prioritize the limited capacity at O’Hare to Subsequent studies by GAO since 1990 have gest Loser in Fortress Hub Monopoly Sys- service the flight operations with the highest confirmed the problem of higher fares at tem. profitability, the small community ‘‘spoke’’ Fortress Hubs—higher than would exist in a The air travel consumer most seriously traveler gets harmed on two levels. First, he competitive environment. See e.g., Barriers harmed by this horizontal Fortress Hub mar- loses service when the cominant airlines cut to Entry Continue in Some Markets (GAO/T– ket allocation is the business traveler—par- small community service to use the limited RCED–98–112; March 5, 1998); Airline Deregu- ticularly the small to medium size business capacity to service more lucrative long-haul lation: Barriers to Entry Continue to Limit traveler who cannot negotiate bulk fare dis- or international traffic—eliminating less Competition in Several Key Domestic Mar- counts and who must make time sensitive profitable small community service. Second, kets (GAO/RCED–97–4, Oct. 18, 1996); Domes- business trips at unrestricted coach fares. as to the small community traffic that the tic Aviation: Barriers to Entry Continue to The Illinois Department of Transportation dominant airlines still service, they are able Limit Benefits of Airline Deregulation (GAO/ estimates this monopoly based fare penalty to charge exorbitant rates—knowing that RCED–97–120, May, 13, 1997); Airline Competi- at O’Hare alone exceeds several hundred mil- the small community spoke traveler is at tion: Higher Fares and Less Competition lion dollars per year. Nationally, the loss to their mercy. Continue at Concentrated Airports (GAO/ the traveling public from these monopoly 6. The Big Seven’s Fortress Hub Geo- RCED–93–141, July 15, 1993); Airline Competi- premiums at Fortress Hubs is likely to ex- graphic Market Allocation is a Per Se Viola- tion: Effects of Airline Market Concentra- ceed several billion dollars annually. tion of the Antitrust laws. tion and Barriers to Entry on Airfares (GAO/ As stated in major articles on the subject Neither the Administration nor the Con- RCED–91–101, Apr. 26, 1991). by USA Today and the New York Times: gress appears to have critically examined a While repeatedly emphasizing the problem What travelers suspect is true: Airfares are central question: Does the Big Seven’s For- of higher monopoly fares caused by lack of climbing fast, and nowhere is the situation tress Hub geographic market allocation vio- competition, GAO continued to emphasize worse than at the hubs for the nation’s larg- late the Nation’s antitrust laws? Based on the lifting of slot restrictions at three of the est airlines. clear and repeated Supreme Court precedent, nation’s airports as a partial solution to the Business travelers have been especially it clearly does. problem. GAO’s prime emphasis has been to hard hit at hubs The major airlines general de facto geo- obtain access to airport capacity for the so- And almost everywhere, hub fares, espe- graphic allocation of major air travel mar- called ‘‘low-cost’’ new entrant airlines into cially for business fliers, are soaring. (USA kets in the nation through the development the Fortress Hub markets. Today February 23, 1998) of ‘‘Fortress Hubs’’ constitutes a per se vio- But GAO has never analyzed the issue of Business travelers feel particularly abused lation of the antitrust laws. The Supreme the ‘‘capacity’’ of these slot-restricted air- because they account for more than half of Court has uniformly condemned arrange- ports to service new competition—even if the airline revenue. For in the through-the-look- ments to carve up horizontal markets as per slot restrictions were lifted. As discussed ing-glass world of airline pricing, the fares se violations of Section 1 of the Sherman below, the FAA has repeatedly emphasized paid by leisure travelers, who book as long Act. See e.g., Palmer v. BRG Group of Geor- that the practical capacity of an airport is as a month in advance and stay over a week- gia, 498 U.S. 46, 49 (1990); United States v. limited (see discussion, infra.) and that as end night, have in many cases declined, Topco Associates, Inc., 405 U.S. 596, 607–609 traffic growth approaches the physical limits while last-minute fully refundable fares, (1972). of the airport’s capacity, aircraft delays rise which are most often paid by business trav- Virtually all laymen and most lawyers shy geometrically—essentially leading to grid- elers, are skyrocketing. away from antitrust law as an economic mo- lock. ‘‘The carriers always say that the business rass difficult to understand. But there is one As the analysis contained in the 1995 DOT traveler is inelastic,’’ said Peter M. area where the United States Supreme Court report A Study of the High Density Rule, and Buchheit, director of travel and meeting has been clear and unequivocal: horizontal this study show, there simply is not enough services for the Black & Decker Corporation, arrangements to carve up geographic mar- capacity at O’Hare—even with the slots lift- which spent $18 million on air tickets for its kets are an automatic—a ‘‘per se’’—violation ed—to all significant new competition to American employees last year. ‘‘We need to of the federal antitrust laws. Because this enter the Chicago market. This is why the travel so we will pay whatever it costs. But law is so-clear and unambiguous—and recog- Big Seven’s collective refusal (discussed it has reached a point where we can’t pay it nizing that the airlines will claim that the infra) to use and support the major new ca- anymore.’’ law can be ignored—we believe it important pacity that would be provided by the new The burden of high fares is even greater on to quote the United States Supreme Court South Suburban Airport is a central compo- small companies. John W. Galbraith, presi- on this subject:

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00050 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5141 ‘‘While the Court has utilized the ‘rule of tem—and their refusal to compete in each straint of trade or commerce among the sev- reason’ in evaluating the legality of most re- other’s hub market—is a horizontal market eral States, or with foreign nations, is here- straints alleged to be violative of the Sher- restraint and a per se violation of the Sher- by declared to be illegal. Every person who man Act, it has also developed the doctrine man Act. shall make any contract or engage in any that certain business relationships are per se The law is equally clear it is not necessary combination or conspiracy hereby declared violations of the Act without regard to a to demonstrate a formal written agreement to be illegal shall be deemed guilty of a fel- consideration of their reasonableness. In among the Big Seven to carve up the geo- ony, and, on conviction thereof, shall be pun- Northern Pacific R. Co. v. United States, 356 graphic Fortress Hub market in order to find ished by fine not exceeding $10,000,000 if a U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958), a conspiracy in violation of the Sherman corporation, or, if any other person, $350,000, Mr. Justice Black explained the appropriate- Act. The existence of such an agreement or or by imprisonment not exceeding three ness of, and the need for, per se rules:’’ arrangement can be inferred from the course years, or by both said punishments, in the ‘‘ ‘(T)here are certain agreements or prac- of conduct of the members of the industry. discretion of the court. (Title 15 United tices which because of their pernicious effect Norfolk Monument Company v. Woodlawn States Code § 1 (emphasis added)) on competition and lack of any redeeming Memorial Gardens, 394 U.S. 700, 704 (1969); Section 2 of the Sherman Act provides: virtue are conclusively presumed to be un- American Tobacco Company v. United Every person who shall monopolize, or at- reasonable and therefore illegal without States, 328 U.S. 781, 809–810 (1946); tempt to monopolize, or combine or conspire elaborate inquiry as to the precise harm InterstateCircuit v. United States, 306 U.S. with any other person or persons, to monopo- they have caused or the business excuse for 208, 221, 226–227 (1939). lize any part of the trade or commerce their use. This principle of per se 7. The Metropolitan Chicago Market: An among the several States, or with foreign na- unreasonableness not only makes the type of Egregious Example of the Geographic Mar- tions, shall be deemed guilty of a felony, restraints which are prescribed by the Sher- ket Allocation and Refusal to Compete—‘‘If and, on conviction thereof, shall be punished man Act more certain to the benefit of ev- You Build It, We Won’t Come.’’ by fine not exceeding $10,000,000 if a corpora- eryone concerned, but it also avoids the ne- A particularly egregious implementation tion, or, if any other person, $350,000, or by cessity for an incredibly complicated and of this horizontal agreement not to compete imprisonment not exceeding three years, or prolonged economic investigation into the in each other’s Fortress Hub markets can be by both said punishments, in the discretion entire history of the industry involved, as found in the major airlines’ announced re- of the court. (Title 15 United States Code § 2 well as related industries, in an effort to de- fusal to use a new major airport in the met- (emphasis added)) termine at large whether a particular re- ropolitan Chicago. The most visible mani- Section 4 of the Act provides civil injunc- straint has been unreasonable—an inquiry so festation of their refusal to compete in the tion remedies and mandates the Department often wholly fruitless when undertaken.’’’ Chicago market an be found in letters writ- of Justice to ‘‘institute proceedings in equity ‘‘It is only after considerable experience ten by sixteen Chief Executive Officers to prevent and restrain such violations’’: with certain business relationships that (CEOs) of the major airlines to Illinois Gov- The several district courts of the United courts classify them as per se violations of ernor Jim Edgar and his successor George States are invested with jurisdiction to pre- the Sherman Act. See generally Van Cise, Ryan. In those letters—drafted in coordina- vent and restrain violations of sections 1 to The Future of Per Se in Antitrust Law, 50 tion with representatives of the City of Chi- 7 of this title; and it shall be the duty of the Va.L.Rev. 1165 (1964). One of the classic ex- cago and the Air Transport Association—the several United States attorneys, in their re- amples of a per se violation of § 1 is an agree- major airlines tell the Illinois Governor that spective districts, under the direction of the ment between competitors at the same level they will refuse to use the proposed new met- Attorney General, to institute proceedings of the market structure to allocate terri- ropolitan Chicago airport: in equity to prevent and restrain such viola- tories in order to minimize competition. ‘‘We are writing to express our concerns tions. (Title 15 United States § 4 (emphasis Such concerted action is usually termed a about further planning and development of added)) ‘horizontal’ restraint, in contradistinction to the so-called Third Chicago Airport. It is our Section 15 provides that any person injured combinations of persons at different levels of understanding that the State of Illinois will by the violations of the antitrust laws can the market structure, e.g., manufacturers not proceed with the construction of a third recover treble (triple) damages for the mone- and distributors, which are termed ‘vertical’ airport without the support of the airlines. tary losses caused by the violations. restraints. The Court has reiterated time This letter is intended to inform you that [A]ny person who shall be injured in his and time again that ‘(h)orizontal territorial the airlines oppose further planning and con- business or property by reason of anything limitations . . . are naked restraints of trade struction of this facility . . . forbidden in the antitrust laws may sue with no purpose except stifling of competi- Chicago area news media have character- therefore in any district court of the United tion.’ White Motor Co. v. United States, 372 ized the major airlines’ refusal to use a new States in the district in which the defendant U.S. 253, 263, 83 S. Ct. 696, 702, 9 L.Ed.2d 738 airport as ‘‘If you build it, we won’t come.’’ resides or is found or has an agent, without (1963). Such limitations are per se violations In reality, this collective refusal to use a respect to the amount in controversy, and of the Sherman Act. See Addyston Pipe & new regional airport is nothing more than a shall recover threefold the damages by him Steel Co. v. United States, 175 U.S. 211, 20 manifestation of the major airlines’ hori- sustained, and the cost of suit, including a S.Ct. 44 L.Ed 136 (1989), aff’g 85 F. 271 (C.A.6 zontal market agreement not to compete in reasonable attorney’s fee. (Title 15 United 1898) (Taft, J.); United States v. National any significant way with United and Amer- States Code § 15) Lead Co., 332 U.S. 319,67 S.Ct. 1634, 91 L.Ed. ican in their dominant Chicago market. This In summary, the statutory sanctions for 2077 (1947); Timken Roller Bearing Co. v. refusal by major airlines such as Delta, these antitrust violations are significant. United States, 341 U.S. 593, 71 S.Ct. 971, 95 Northwest, USAir, and Continental to use Thus far, federal Department of Justice offi- L.Ed. 1199 (1951); Northern Pacific R. Co. v. new metropolitan Chicago airport capacity cials have been unwilling to initiate anti- United States, supra; Citizen Publishing Co. to compete in metropolitan Chicago is but trust enforcement proceedings to break up v. United States, 394 U.S. 131, 89 S.Ct. 927, 22 an individual example of the per se antitrust the Fortress Hub monopoly of the Big Seven. L.Ed.2d 148 (1969); United States v. Sealy, violation of allocating geographic markets 9. The Major Airlines Geographic Market Inc., 388 U.S. 350, 87 S.Ct. 1847, 28 L.Ed.2d 1238 by the major airlines. Allocation—A Per Se Violation of the Anti- (1967); United States v. Arnold, Schwinn & 8. The Fortress Hub System and the Big trust laws—Is Not Immunized by the ‘‘Noerr- Co., 388 U.S. 365, 390, 87 S.Ct. 1856, 1871, 18 Seven’s Collective Refusal to Compete in Pennington’’ Doctrine. L.Ed.2d 1249 (1967) (Stewart, J., concurring in Each Other’s Fortress Hub Markets—as Il- The major airlines’ have engaged in this de part and dissenting in part); Serta Associ- lustrated by Their Collective Refusal to Use facto Fortress Hub geographic market allo- ates, Inc. v. United States, 393 U.S. 534, 89 the New South Suburban Airport—Represent cation scheme for more than a decade. It is S.Ct. 870, 21 L.Ed.2d 753 (1969), aff’g 296 Serious Violations of Federal Law. likely that the airlines will assert that their F.Supp. 1121, 1128 (N.D.Del.1968).’’ (United These clear violations by the Big Seven collective refusal to compete in the metro- States v. Topco Associates, Inc., 405 U.S. at airlines in creating and maintaining the For- politan Chicago market—and the manifesta- 607–608 (emphasis added)) tress Hub system and the refusal of the Big tion of that refusal by their letters to Gov- The Big Seven’s carving up of geographic Seven to compete in each other’s markets ernors Edgar and Ryan—is immunized from markets into the current Fortress Hub sys- represent serious violations of the antitrust antitrust law enforcement by the ‘‘Noerr- tem is nothing more than a naked horizontal laws. If the GAO and IDOT estimates are ac- Pennington’’ doctrine. That doctrine immu- restraint repeatedly condemned by the Su- curate, nationally the Fortress Hub system nizes antitrust violations where the prin- preme Court as a per se violation of the literally illegally steals several billion dol- cipal vehicle for achieving the monopolistic Sherman Act. lars per year from the nation’s air trav- goal is political expression—i.e., lobbying Put in terms the average citizen under- elers—several hundred million dollars in the government. stands—Could McDonald’s tell Burger King: Chicago area alone. But the post-Noerr-Pennington case law We won’t compete in Atlanta if you won’t Because these antitrust violations are so makes clear that where a business arrange- compete in Chicago? Could Ford tell GM: We blatant, it is important for the public to ment—that otherwise violates the antitrust won’t sell Fords in Michigan if you won’t know the significant sanctions and remedies laws—has one component that involves the well Chevys in Illinois? The answer is clearly available to cure these violations. exercise of First Amendment speech, there is no. Each would be a horizontal market re- Section 1 of the Sherman Act provides: no immunity from antitrust enforcement straint and a per se violation of the Sherman Every contract, combination in the form of under the ‘‘Noerr-Pennington’’ doctrine. See Act just as the Big Seven’s Fortress Hub sys- trust or otherwise, or conspiracy, in re- Allied Tube & Conduit Corp. v. Indian Head,

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00051 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 H5142 CONGRESSIONAL RECORD — HOUSE July 23, 2002 Inc., 486 U.S. 492, 505–506 (1988); FTC v. Supe- cago market (i.e., through the new airport), whatever arguable minor incremental capac- rior Court Trial Lawyers Ass’n, 493 U.S. 411, but much of the money to implement this il- ity exists at O’Hare (if any), it has been rap- 423–426 (1990); Sandy River Nursing Care v. legal arrangement is coming from federal idly consumed by United and American—not Aetna Casualty, 985 F.2d 1138, 1142–43 (1st Cir. taxpayer dollars. The GAO and the Depart- used by new competition. Instead of reducing 1993); In re Brand Name Prescription Drugs ment of Justice should be asked to conduct the monopoly, the new federal law has Antitrust Litigation, 186 F.3d 781, 788–789 (7th an independent audit of all PFC, AIP, and helped United and America expand the mo- Cir. 1999). GARB expenditures at O’Hare to determine nopoly. 10. The Major Airlines Geographic Market if any federal funds wee used as part of a United’s and American’s actions—coupled Allocation—A Per Se Violation of the Anti- campaign to ‘‘Kill Peotone’’ and to assist in with the limited capacity of O’Hare—illus- trust laws—Is Not Immunized by the ‘‘State the violation of federal antitrust laws. trate’s salient point. There simply is not Action Doctrine’’. 12. Federal Officials Have Participated in enough capacity at O’Hare to bring any sig- It is common for those accused of antitrust and Supported the Big Seven’s Illegal Mo- nificant new competition into O’Hare. Any violations to claim that their monopolistic nopolistic Arrangement to Refuse to Com- new competitive entry will be token at best practices are immunized from antitrust li- pete in the Chicago Market. and not provide meaningful competition to ability under the so-called ‘‘state action’’ Not only have federal funds been used to the hub-and-spoke dominance of United and doctrine of Parker v. Brown, 317 U.S. 341 support the major airlines illegal monopo- American. (1943). The Supreme Court’s rationale in listic arrangement to refuse to compete in Lifting the slot limit, coupled with United Parker for ‘‘state action’’ immunity was the the Chicago market, but it appears that fed- and American’s actions to jam more than 400 Congress had not intended in the Sherman eral officials within the Administration have new flights into O’Hare also means massive Act to control the activities of states in en- worked with the major airlines and Chicago new delay increases for the traveling public gaging in conduct directed by the state legis- to assist in this antitrust arrangement to this Summer. To illustrate these points and lature. 317 U.S. at 351–352. prevent the development of a new airport in to demonstrate why the recently passed fed- But the Supreme Court has severely lim- metropolitan Chicago. For the last several eral legislation makes matters much worse ited the availability of ‘‘state action’’ immu- years, federal administration officials—sev- at O’Hare requires a brief analysis of the re- nity when invoked by private parties such as eral of whom are former Chicago officials lated issues of capacity and delay at air- the airlines in an attempt to immunize con- who worked for the Chicago Aviation De- port—particularly O’Hare. duct clearly violative of the antitrust laws. partment—have blocked development of the FAA, the airlines, Chicago and IDOT define The Supreme Court has established two re- new South Suburban Airport through a se- capacity as the number of operations that quirements for ‘‘state action’’ immunity ries of spurious legal claims that federal law can be processed at an airport at an accept- where private parties participate in the anti- requires that a ‘‘consensus’’ must exist be- able level of delay. There is a recognition trust violation: 1) the monopolistic activity tween the State of Illinois and the City of that there is a difference between absolute must be clearly expressed and affirmatively Chicago before a new metropolitan airport maximum physical throughput and a lower adopted as being the policy of the State, and can be constructed. No such legal require- level of operations that can be put through 2) the monopolistic activity must be actively ment exists. without experiencing intolerable levels of supervised by the State itself. Federal Trade Because of the active participation of key delay and cancellations. As stated by the Commission v. Ticor Title Insurance Co, 504 figures in the current administration in pro- City of Chicago: U.S. 621, 633–634 (1992); Patrick v. Burget, 486 moting and supporting the continued block- ‘‘The practical capacity of an airfield will U.S. 94, 101–102 (1988); California Retail Liq- age of new airport development in metropoli- be defined as the maximum level of average uor Dealers Assn. v. Midcal Aluminum, Inc., tan Chicago—in concert with the illegal re- all-weather throughput achievable while 445 U.S. 97, 105–106 (1980). fusal of the major airlines to compete in the maintaining an acceptable level of delay.’’ In the case of Fortress O’Hare and the col- Chicago market by using the new airport— ‘‘Ten minutes per aircraft operation will be lective campaign of United, American and and impartiality and lack of bias of the Ad- used at the maximum level of acceptable Chicago to keep significant new hub-and- ministration in conducting law enforcement delay for the assessment of the existing air- spoke competition from coming into the in this area is suspect. The Attorney General field’s capacity, subject to future levels of metro Chicago market, there is no question should be asked to appoint an independent forecast demand. This level of delay rep- that the ‘‘state action’’ defense does not prosecutor to conduct the antitrust inves- resents an upper bound for acceptable delays apply. First, the State of Illinois has not au- tigation and to undertake all appropriate ac- at major hub airports.’’ thorized the Fortress O’Hare monopoly tions needed to correct the ongoing antitrust This relationship between maximum phys- maintained by United and American and has violations. ical throughput and practical, delay-sen- actively spoken out against the monopoly 13. Defining Essential Remedies—A New sitive capacity is illustrated in a FAA chart problem there. Second, the State is not ac- Regional Airport With Sufficient Capacity to copied from an FAA report on the subject, tively supervising and approving the anti- Support New Competitive Hub-And-Spoke Airfield and Airspace Capacity/Delay Policy competitive conduct by United and United Operations. Analysis, FAA–APO–81–14. and American and Chicago. There have been two ‘‘remedies’’ asserted This relationship holds true whatever the 11. Federal Taxpayer Funds May Have to eliminate the monopoly dominance of input data as to the level of demand or what- Been Used to Suppress Competition and Vio- Fortress O’Hare in the Chicago market. The ever the capacity of the airport under study. late the Antitrust Laws in the Chicago Mar- first—eliminating slot restrictions at Once the demand reaches a point approach- ket. O’Hare—was proposed and passed by Con- ing the physical capacity of the airport the As stated above, other major airlines gress this year. According to proponents of delay levels for all traffic at the airport rise through the (ATA), United and American lifting the slot limits, elimination of slot geometrically. The acceptable or ‘‘practical (the dominant carriers at O’Hare) have en- controls would bring new competition into capacity’’ of the airport is that level where gaged in a concerted effort to defeat con- O’Hare. delays are acceptable. To push more traffic struction of a new South Suburban Airport, A. Lifting the Slot Limits Was an Unmiti- beyond that point is a certain invitation to an airport that would provide significant ca- gated Disaster. massive delays, major cancellations, and pacity opportunities for major new competi- At the time the federal laws lifting the slot gridlock. tion to enter the Chicago market. United ex- limits was passed, Illinois Senator Peter At one point FAA defined the acceptable ecutives have privately stated their goal as Fitzgerald and Congressman Henry Hyde level for practical capacity of an airport as ‘‘Kill Peotone’’. both voted against the bill. They argued that four minutes average annual delay. That United and American have been assisted in the slot limitations were not an artificial translated into about a 30-minute delay in their ‘‘Kill Peotone’’ (and thus kill new com- constraint but a recognition of the already peak periods. Now FAA, IDOT and Chicago petitive capacity) campaign by representa- exhausted limited capacity of O’Hare. They defined the acceptable level of delay to de- tives of the City of Chicago—including Chi- argued that lifting the slots would be a dis- fine practical capacity as 10 minutes average cago’s consultants. Chicago’s consultants aster because: (1) added flights should lead to annual delay. This translates (in equivalent have been paid several million dollars in con- a massive delay gridlock at O’Hare, and (2) terms) into more than an hour delay in peak sulting fees to assist Chicago and United and that even if there were any additional capac- periods. American in expanding O’Hare and in ob- ity, that capacity would be rapidly consumed What is important to emphasize is that all structing development of a new South Sub- by American and United. Under these cir- FAA and chicago—and most likely Booz- urban Airport. cumstances, they argued that lifting the slot Allen and United and Ameican—runs of the Much of the money paid to these consult- limits would simply expand United’s and SIMMOD model for O’Hare show average an- ants has come from either: (1) federal Pas- American’s monopoly—not increase competi- nual delay at O’Hare is currently in excess of senger Facility Charge (PFC) funds (2) fed- tion. 10 minutes average annual delay—already eral Airport Improvement Program (AIP) Senator Fitzgerald and Congressman Hyde above acceptable capacity limits without funds, or (3) federal tax subsidies for munic- can rightfully say: I told you so. On April 20, adding more flights. FAA and Chicago and ipal for municipal airport bonds (‘‘GARBs’’ 2000 United and American announced their United and American all know that a push General Airport Revenue Bonds). Not only intent to add 400 new daily flights to O’Hare. 400–500 new flights per day into O’Hare is are the airlines and Chicago engaged in a The sad reality is that O’Hare does not have going to lead to: (1) massive increases in monopolistic arrangement designed to pre- the capacity for these 400 new flights. But delays and (2) widespread cancellations. FAA vent new competition from entering the Chi- Fitzgerald’s and Hyde’s point was made; (USDOT) A Study of the High Density Rule

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00052 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5143 illustrates the massive delay increase that American argues that O’Hare should be the Further, it would virtually doom the eco- adding just a few flights at O’Hare beyond only ‘‘hub-and-spoke’’ airport in metropoli- nomic justification for the new south subur- the slot limits will do to all passengers at tan Chicago. ban airport because the new ‘‘delay’’ run- O’Hare. This analysis shows that adding 400– By shaping the argument in this fashion, way—once built—could easily be used to 500 flights per day will lead to disastrous United and American guarantee that they carry the new additional traffic for which delays for all passengers—more than dou- will be allowed to continue and dramatically the new airport was intended. Simply by bling the delays for all passengers, not just expand their Fortress Hub monopoly at piecemealing incremental expansion at those who are on the new additional flights. O’Hare. According to their arguments, the O’Hare, Chicago and American and United We anticipate that FAA and United and lion’s share of all the origin-destination traf- can keep the region under the thumb of the American will claim that the delay and ca- fic in the region—and all of the connecting Fortress O’Hare monopoly. pacity results of DOT in 1995 have been and international traffic—should go to the 14. United’s and American’s Fight to Pre- changed because of capacity improvements sole hub-and-spoke airport in the region: serve and Expand Fortress Hub Monopoly at O’Hare in intervening years. But if so, a O’Hare. Any minor overflow of ‘‘point-to- Power at O’Hare has Grave Social, Eco- few questions need answering. What are the point’’ origin-destination traffic that Mid- nomic, Public Health, and Quality of Life capacity improvements since 1995? How way could not handle could be addressed in a Consequences for the Region. much new capacity has been provided? What small ‘‘point-to-point’’ airport like the In their passion to expand Fortress O’Hare will be the capacity/delay numbers (com- South Suburban Airport or Gary. and defeat the prospect of new hub-and- parable to DOT’s 1995 analysis) with the new What United and American gloss over is spoke competition coming into a new air- capacity? Why were there no public hearings the fact there is plenty of competition in the port, United and American have disregarded and environmental disclosure on these ca- Chicago market in point-to-point service. safety, public health, and quality of life for pacity improvements? The real lack of competition in the Chicago the communities around O’Hare. All parties We suspect the answer is that there have market is in the lack of additional hub-and- are in agreement that growth in air traffic not been any capacity changes at O’Hare spoke competition to challenge the hub-and- should be accommodated with major in- since 1995 and DOT’s numbers remain valid. spoke duopoly of United and American at creases in new airport capacity in the metro- Conversely, if there have been capacity Fortress O’Hare. It is this market dominance politan Chicago region. changes, FAA has failed to inform both af- of the hub-and-spoke market—not the point- The choices are stark: (1) a new regional fected elected officials (e.g., Congressman to-point—where lack of competition gouges airport which will have an environmental Hyde and Senator Fitzgerald) and they have the business traveler and the traveler from land buffer three times the size of O’Hare failed to tell the public and give the public ‘‘spoke’’ cities. There is a desperate need for and plenty of capacity to accommodate new an opportunity to be heard. new competitive hub-and-spoke service in hub-and-spoke competition or (2) an over- There is another important point to em- the Chicago market and the place to put stuffed O’Hare with no land buffer and con- phasize about this throughput/delay rela- that hub-and-spoke is the new South Subur- tinued dominance of the metropolitan hub- tionship shown on the FAA charts. Where ban Airport. and-spoke market by United and American. the airport is at the limits of acceptable No federal administration officials appear But for the addiction to monopoly revenues delays—i.e., the practical capacity limit— to be examining whether spending 10 billion at Fortress O’Hare, the decision is simple— very small shifts in either traffic demand or dollars (much of it from federal taxpayers) send the traffic growth to a new environ- capacity can dramatically increase delays at O’Hare makes economic sense when much mentally sound, competitively open new re- for all passengers. Thus a small increase in more new capacity to support competitive gional airport. traffic demand beyond the practical capacity hub-and-spoke operations can be constructed Instead we have United and American and limit will generate huge increases in delays at a new metropolitan airport for less than their political surrogates urging more air for all passengers. Similarly, a slight de- half the cost. Nor are federal officials exam- pollution, more noise, and more safety haz- crease in capacity—such as experienced this ining whether the use of billions of dollars of ards be imposed on O’Hare area commu- past year when regional jet pilots were refus- federal taxpayer funds to expand United and nities—simply to protect and expand the ing Land-And-Hold-Short for safety rea- American’s hub-and-spoke duopoly at For- Fortress O’Hare monopoly. We now live in a sons—can dramatically increase delays with tress O’Hare—essentially using billions of bizarre world where the desire to protect and little or no increase in throughput. The dollars of federal taxpayer funds to subsidize expand violations of antitrust law and illegal point here is that O’Hare is already at the expansion of monopoly power—is proper use overcharges trumps protection of public breaking point—brought there by the resist- of federal funds. health, safety and quality of life. ance of Chicago and the Fortress Hub air- C. A New Runway at O’Hare is Intended to The consequences of these abuses of mo- lines at O’Hare (United and American) to the Increase Capacity to Expand United and nopoly power for the metro Chicago region building of a new regional airport. O’Hare American’s Monopoly Power. are stark and severe: cannot handle 400–500 new flights per day and As discussed above, the airlines’ current O’Hare area communities will be subjected United and American know it. Their own public relations argument is that the lion’s to more noise, more air pollution, and more SIMMOD analysis tells them that. share of all the origin-destination traffic in safety hazards because—under the United, Why then do United and American an- the region (and all of the connecting and American, and Chicago proposal—all the nounce a literally foolhardy plan to jam 400– international traffic) should go to the sole international, all the transfer traffic, and 500 flights into O’Hare—an announcement hub-and-spoke airport in the region (O’Hare). the lion’s share of the origin-destination made the same day that United’s and Ameri- Any minor overflow of point-to-point origin- traffic are jammed into an already over- can’s front organization (the Civic Com- destination traffic that a dramatically ex- stuffed O’Hare. Any new airport—even if mittee) calls for a new runway at O’Hare? By panded O’Hare and Midway could not handle built—will simply receive the origin-destina- deliberately creating chaos at O’Hare, (if any) could be addressed in a small point- tion overflow (if any) from a vastly expanded United and American will then be able to say to-point airport like the South Suburban O’Hare and Midway. that delays are at crisis levels and we must Airport or Gary. South Chicago and south suburban commu- immediately build a new runway at O’Hare. Paralleling this argument is the claim by nities will continue to suffer serious eco- B. The ‘‘Point-To-Point’’ Shell Game: the airlines allies that a new runway at nomic decline because the South Suburban Building the South Suburban Airport as a O’Hare is needed to ‘‘reduce delays’’. They Airport—which should have been built years ‘‘Point-To-Point’’ Airport Will Not Break claim that a new runway would not increase ago—lies hostage to the unholy alliance the Hub-And-Spoke Monopoly of Fortress O’Hare capacity but simply reduce delays. struck between the monopoly interest of O’Hare. Yet an analysis using FAA’s own capacity United and American and the political pique The heart of the monopoly overcharges to analysis standards and criteria demonstrates of Chicago’s mayor. Residents of South and travelers in the Chicago market is the ab- that a new runway at O’Hare would substan- South Suburban Chicago legitimately ask sence of competition in the hub-and-spoke tially increase the capacity of the airport. why United and American oppose the hun- market in Chicago. None of the other Big As discussed above, the concepts of capacity dreds of thousands of jobs and billions in eco- Seven will come into the Chicago market to and delay are closely interrelated. The FAA nomic benefits that would accrue to this establish a competitive hub-and-spoke oper- and Chicago both define capacity as that area if the new airport is built. Some at- ation. level of aircraft operations that can be proc- tribute United and American’s position to United and American propose using close essed at an airport at an acceptable level of racial intent. More accurately, United and to 10 billion dollars (much of it in federal delay. American are willing to ignore the severe funds) to expand United and American’s hub- The FAA’s published graphic showing the economic harm their monopolistic position and-spoke empire at Fortress O’Hare. In an relationship of capacity and delay illustrates inflicts on an area with a significant Afri- attempt to expand their monopoly and pre- a how a so-called ‘‘delay reduction’’ at one can-American population if that harm is a vent new competition from entering the Chi- level of traffic results in an increase in ca- necessary consequence of preserving and ex- cago market, United and American (along pacity at the airport to accommodate addi- panding their monopoly at Fortress O’Hare. with the ‘‘Civic Committee’’ and the tional levels of traffic. In a world of pure economic rationality, mo- Chicagoland Chamber) have sought to dis- This capacity increase at O’Hare—by build- nopoly power and the social and economic tract attention by suggesting a south subur- ing a runway to ‘‘reduce delay’’—would dra- injustices incident to that monopoly power ban airport in Chicago as a ‘‘point-to-point’’ matically expand American’s and United’s might be excused as central to the maxi- airport—not unlike Midway. United and hub-and-spoke monopoly at Fortress O’Hare. mization of profit. However, in a world of

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00053 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 H5144 CONGRESSIONAL RECORD — HOUSE July 23, 2002 law and justice—where political leaders Our Governor should hold fast to his prom- doesn’t protect anti-competitive practices must account for their failure to correct ise not to permit any additional runways at that have evolved independent of any gov- these abuses—such destructive monopoly O’Hare. To do otherwise would simply en- ernment authorization, as in the present power should not be tolerated. hance and expand the monopoly power of case. RECOMMENDATIONS Fortress O’Hare and doom the opportunity to Nor can the airlines or Chicago defend themselves by the ‘‘state action’’ doctrine, Based on the facts and the antitrust law bring in new competition into the region at which allows states, as a matter of fed- analysis contained in this report, the Subur- the South Suburban Airport. The two candidates for President of the eralism, to consciously participate in mo- ban O’Hare Commission recommends the fol- United States—both of whom have likely re- nopoly practices. For this defense to succeed, lowing actions: ceived large campaign contributions from The United States Attorney General and Supreme Court decisions require that the the Big Seven—should be respectfully asked the United States Attorney for the Northern state must clearly endorse and supervise the what they will do to break up the Fortress District of Illinois should initiate an inves- monopoly practices. Here there has been no Hub system nationally and Fortress O’Hare tigation into the collective refusal of the Big such approval of the Fortress Hub monopoly in particular. Vice President Gore in par- Seven airlines to compete against each other abuses by the State of Illinois. ticular should be asked why his administra- Chicago and its officials are not immune in each other’s Fortress Hub Markets. In- tion has for the past eight years looked the from antitrust law liability for helping the cluded in the investigation should be an ex- other way while the Big Seven has used vio- major airlines avoid competing with the amination of the role of third party collabo- lations of the nation’s antitrust laws to lit- United/American cartel at O’Hare. rators in the antitrust violations—including erally steal billions of dollars from American Federal taxpayer funds may have been the City of Chicago and other private organi- consumers. Mr. Gore should also be asked to used to suppress competition and violate zations and individuals who have assisted explain why his administration has blocked antitrust laws in the Chicago market. the Big Seven (including United and Amer- development of new competitive capacity in The Clinton administration has not only ican) in perpetrating these violations. Be- metro Chicago—i.e. a new South Suburban looked the other way in not bringing anti- cause of the involvement by federal officials Airport—at every turn. Finally, Mr. Bush trust enforcement action to break up the in affirmatively assisting the Big Seven and should be asked specifically what he will do Fortress Hub system, but has affirmatively the City of Chicago in keeping significant to build the South Suburban Airport. assisted Chicago and United and American in competition out of Chicago, the Attorney blocking significant new competition from General should be asked to consider the ap- CONCLUSION entering the region by blocking development pointment of independent counsel. The monopoly abuses of the Fortress Hub of a new regional airport in metro Chicago. The United States Attorney General and system—and especially the abuses of For- The lifting of slot limitations will not the United States Attorney should bring a tress O’Hare and the refusal of the Big Seven allow significant competition to enter the civil action in federal court to enjoin and to compete in metropolitan Chicago—are a Chicago market. Instead—as predicted by break up the illegal Fortress Hub geographic national disgrace. It’s time to end it. Senator Fitzgerald and Congressman Hyde— market allocation by the Big Seven and pro- the lifting of the slots will be accompanied hibit the collective refusal by the Big Seven SUBURBAN O’HARE COMMISSION—EXECUTIVE by massive increase in delays and by United to compete in each other’s Fortress Hub SUMMARY and American simply expanding their mo- markets. Included in the relief should be a A study prepared by the Suburban O’Hare nopoly control at the airport. requirement that members of the Big Seven Commission concludes that the major air- Construction of a new runway for ‘‘delay halt their collective refusal to use a new lines have committed per se violations of reduction’’ is simply subterfuge to expand South Suburban Airport in metropolitan federal antitrust laws by refusing to compete the size of United and American’s Fortress Chicago and a requirement that competitive with each other in Fortress Hub markets, Hub operation at O’Hare. Building a new hub-and-spoke operations be established in such as in the metro Chicago region now runway at O’Hare will make the monopoly metro Chicago to compete with United and dominated by ‘‘Fortress O’Hare’’. problem—and resultant air fare over- American. The glaring example of these monopolistic charges—even worse. Moreover, it will doom The State Attorneys General should ini- practices are documented by the major air- the economic viability of the New South tiate civil damage actions to recover treble line’s letter to former Illinois Gov. Jim Suburban Airport. damages for the billions of dollars per year Edgar which, in effect, said if the state in excess monopoly profits in airfare over- builds a new airport in Chicago’s southern Recommendations charges that have been charged at the Big suburbs, ‘‘we won’t come.’’ Based on these findings, SOC recommends: Seven’s Fortress Hubs. The Illinois Attorney That leaves United and American airlines, Investigations by the U.S. Attorney Gen- General should bring suit to recover treble which control over 80 percent of the air traf- eral and U.S. Attorney for Northern Illinois damages for the hundreds of millions of dol- fic at O’Hare in an unchallenged market po- into activities by the airlines, the city of lars in monopoly overcharges by American sition. It would be as if Ford Motor Company Chicago, consultants and other third parties and United at Fortress O’Hare. On a multiple told General Motors, ‘‘If you agree not to which have been used to protect and expand year basis in Illinois alone, the treble dam- sell cars in Chicago, we will agree not to the Fortress Hub system nationally—and in ages recoverable for consumers would exceed compete with you in Los Angeles.’’ particular to prevent new airport develop- several billion dollars. SOC’s major findings include: ment in the metro Chicago region. The GAO and the Department of Justice The de facto agreement among the ‘‘Big Civil action by the Attorney General and should undertake an immediate and detailed Seven’’ airlines—Northwest, United, Amer- U.S. Attorney here to break up the Fortress audit of all federal funds that may have been ican, Delta, US Air, Continental and Trans Hub system and to compel the major airlines used to further the refusal of the other mem- World—not to compete in each others hub to stop their refusal to compete in metro bers of the Big Seven to compete with United market is the heart of the monopoly prob- Chicago. and American in metropolitan Chicago—par- lem. Action by state attorneys general to re- ticularly the campaign by the airlines and The resulting fortress hub monopolies are cover treble damages for fliers who were Chicago to ‘‘Kill Peotone’’. costing American air travelers billions of charged billions of dollars in excess fares as The United States Department of Trans- dollars annually in monopoly induced higher a result of the Fortress Hub system. portation should withhold any further ap- fares, especially the fares charged to time- A Government Accounting Office and De- provals of federal funds for expansion of the sensitive business travelers and ‘‘spoke’’ pas- partment of Justice audit of federal taxpayer United and American duopoly at Fortress senger who must connect through the hub to funds to subsidies that abetted the antitrust O’Hare. get to their ultimate destinations. violations, particularly efforts to kill the The House and Senate Judiciary Commit- The Big Seven’s geographic market alloca- South Suburban Airport. tees should conduct immediate hearings on tion violates the nation’s antitrust laws, Governor Ryan should hold fast to his these issues. based on clear and repeated Supreme Court promise not to permit any additional run- Our Governor and our two United States decisions which have roundly condemned ar- ways at O’Hare. To allow additional runways Senators, the Speaker of the House, and our rangements to carve up geographic markets would simply enhance and expand the mo- Illinois Attorney General should be respect- horizontally. nopoly power of Fortress O’Hare and doom fully asked what specific actions they will In Chicago, the clear violation of the anti- the opportunity to bring in new competition take to (1) break up the Fortress Hub sys- trust law is demonstrated by the abandon- into the region by the South Suburban Air- tem—particularly Fortress O’Hare; (2) bring ment by major airlines of meaningful com- port. new hub-and-spoke competitors into the Chi- petition to United and American at O’Hare The withholding of U.S. Transportation cago market; (3) recover the billions in ex- and the announcement that they would not Department of any more federal funds for ex- cess monopoly profits from the Fortress use a South Suburban Airport if built. pansion of the United and American duopoly O’Hare overcharges; (4) prevent the Big The airlines can’t defend their anti-com- at Fortress O’Hare. Seven from continuing to refuse to use the petitive practices with the ‘‘Noerr-Pen- An explanation and action by Illinois’ new capacity provided by the South Subur- nington’’ doctrine, which asserts that peti- highest elected officials as to what they will ban Airport; and (5) assemble the federal and tioning the government to help the industry do to break up the Fortress O’Hare monopoly state resources needed to rapidly build the engage in antitrust actions is protected and provide for a new south suburban air- South Suburban Airport. under Free Speech guarantees. Case law port.

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00054 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5145 A clear statement by Republican and time-sensitive business travelers, billions of support by saying, as president, he would Democratic candidates for president to state dollars in unwarranted and additional fares, fight for federal policies that contributed to their positions on Fortress Hubs, especially government studies have shown. the public interest. Gore did that in the O’Hare and the role of the federal govern- ‘‘Taxpayers should be concerned that mil- South Carolina flag issue, but in the case of ment in either breaking up Fortress O’Hare lions of dollars of federal money, raised in Elian Gonzalez in Florida and a third airport or building new capacity for new competi- part through taxes on every passenger using in Chicago he, too, deferred to the locals. tion at the South Suburban Airport. O’Hare, among other airports, have gone to- Gore is right that the DOT has rec- wards financing costly public relations and ommended against building a third airport STUDY FINDS MAJOR AIRLINES AND CHICAGO political lobbying campaigns to support this now. However, Gore did not share the ration- VIOLATE FEDERAL ANTITRUST LAWS TO SUP- restraint of trade,’’ said Craig Johnson, vice ale for the DOT’s recommendation. Did he PORT HIGH MONOPOLY FARES AND BLOCK president of SOC and mayor of Elk Grove draw his conclusion after a thoughtful series of dispassionate, hard-nosed government NEW COMPETITION Village. ‘‘At every turn, the recommendation of expert panels to relieve the pressure on studies? Or were 2000 political considerations BENSENVILLE, IL, May 21, 2000.—The na- uppermost? President Clinton has told some tion’s major airlines have committed serious O’Hare and the national aviation system by building an airport in Chicago’s south sub- Chicagoans privately that, ‘‘Jesse Jr. may be violations of U.S. antitrust laws by refusing right about the airport, but this is an elec- to compete with each other in ‘‘Fortress urbs has been stymied by this campaign. It begins with two airlines’ insatiable desire to tion year.’’ However, at Daley’s request, the Hub’’ markets, including Chicago, a study by Clinton-Gore administration in 1997 took dominate the Chicago market and is abetted the Suburban O’Hare Commission concludes. Peotone off the nation’s planning list, mak- by other major airlines interested in pro- The study (entitled ‘‘If You Build It, We ing it ineligible for federal funds. Thus, one tecting their own turf. And it is carried out Won’t Come: The Collective Refusal of the is led to conclude that, in Chicago, local pol- by a compliant Chicago mayor who is de- Major Airlines to Compete in the Chicago itics control federal aviation policy, rather pendent on the political spoils of a monopo- Air Travel Market’’) calls for an investiga- than the public interest. O’Hare is the new listic O’Hare airport and those who share in tion by the Justice Department into the patronage system in Chicago—which in- those spoils—contractors, political consult- anti-competitive practices by the airlines, cludes lucrative no-bid contracts, jobs and and also by the city of Chicago, its consult- ants, big public relations firms, conces- vendor access. ants and third party allies, which have been sionaires and their friends in corporate board Is unbalanced growth in the public inter- complicit in the antitrust violations. Based rooms and the media.’’ est? Chicago eventually plans to spend at on the study, SOC officials also called for: Said Geils: ‘‘The antitrust movement 100 least $15 billion to gold-plate O’Hare (and U.S. Attorney General Janet Reno to begin hundred years ago was aimed at breaking up Midway) and build additional runways at civil action to break up the hub monopolies. precisely this sort of attack on the public O’Hare. For considerably less money—$2.3 State attorneys general to recover treble and consumers. After a century, we don’t billion—one could build four runways and 140 damages for fliers who have been billed bil- need new laws. What we need are responsible gates and, more important, achieve balanced lions of dollars in excessive fares made pos- public officials who won’t look the other economic growth. A recent downtown busi- sible by the monopolistic practices. The U.S. way, who will carry out the sworn duties of ness study said current plans will add $10 bil- Transportation Department to withhold any their office.’’ lion to the economy around O’Hare and more federal funds for the expansion, and The hub-and-spoke airline market was 110,000 new jobs. Such a plan will meet Chi- further strengthening, of the United and made possible by aviation deregulation two cago’s transportation needs for the foresee- American airlines’ cartel at O’Hare Airport decades ago, which gave commercial carriers able future and ‘‘keep the health of O’Hare in Chicago. the right to compete where, when and at . . . very strong,’’ as Gore desires. But such General Accounting Office and Department what price they wanted. But instead of the a policy will kill Peotone and its potential of Justice audits of funds that have been robust competition that deregulation was in- 236,000 new jobs, and will lead to increased used to abet the antitrust violations, includ- tended to spawn, it led to increasing con- class and caste segregation in the Chicago ing the airlines’ and Chicago Mayor Richard centrations of power of separate airlines at metropolitan area—a community already M. Daley’s efforts to kill a proposed hub air- separate ‘‘Fortress Hub’’ airports. While the well known for such patterns. Was that un- port in Chicago’s south suburbs. industry will argue that this leads to econo- derstanding part of Gore’s calculation of the Governor Ryan to hold to his firm commit- mies of scales that are passed along to some ‘‘public interest’’ when he affirmed O’Hare ment not to permit new runways at O’Hare air travelers in the form of price savings, and negated Peotone? since such runways would expand United’s government and independent studies show The top 11 businesses in the 2nd Congres- and American’s Fortress Hub monopoly at that large numbers of travelers—especially sional District, with nearly 600,000 residents, O’Hare and would doom the economic jus- time-sensitive business travelers—are actu- employ a mere 11,000 people—one job for tification for the new South Suburban Air- ally paying billions more. every 60 people. By contrast, more than The costs, said Geils, are paid in more than port. 100,000 people go to work in Elk Grove Vil- just higher fares. ‘‘They come in the form of SOC is a government agency representing lage, a city of 36,000 people—three jobs for more air pollution, more noise and more more than 1 million residents who live in every person. The effect of Gore’s position on safety hazards that the airlines are willing communities surrounding O’Hare airport. O’Hare will only add to this disparity. Ap- to impose on O’Hare area communities—sim- The study alleges that the airlines, the city parently, Gore sees the option as either a ply to protect and expand the Fortress of Chicago, its consultants and allies have ‘‘zero sum’’ game—if we build Peotone it will O’Hare monopoly. We now live in a bizarre hurt O’Hare—or he is willing to accept the used millions of dollars of taxpayers’ money world where the desire to protect and profit consequences of unbalanced growth that to thwart a south suburban airport that from illegal overcharges trump the protec- would make the southern part of Chicago would bring competition to the United and tion of public health, safety and quality of and Cook County even poorer, blacker, more American airlines’ cartel at O’Hare and to life.’’ segregated and dependent on government expand the Fortress Hub monopoly at and taxpayers. Is Gore claiming that such O’Hare. [From The Sun Times, May 20, 2000] economic imbalance and racial segregation ‘‘The antitrust violations are as clear and GORE’S INTEREST HARDLY PUBLIC are in the public interest? as egregious as if Ford said to General Mo- Are increased class and caste disparities in (By Jesse Jackson, Jr.) tors, ‘We won’t compete against you in Chi- the political interests of Gore? Quite natu- cago, if you agree not to compete against us At a recent Democratic fund-raiser hosted rally, politicians representing areas of excess by selling cars in Los Angeles’’’ said John by Mayor Daley, Al Gore, the vice president private jobs will want lower taxes and less Geils, SOC chairman and mayor of and presumptive Democratic nominee, said: government—the Republican agenda. My Bensenville, which borders O’Hare Airport. ‘‘The Department of Transportation has said area, in desperation, will turn to the govern- ‘‘The major airlines even went so far as to at the present time it’s a bit premature to ment as the lifeboat of last resort to keep it write two governors of Illinois, in their infa- build a third airport . . . and I have agreed afloat at a subsistence level, even as crime mous ‘If you build it, we won’t come’ letters with that. What happens in the future de- soars, social needs rise, services fail and that they would not use a south suburban pends on the best public interest. I know hardworking, middle-class taxpayers revolt airport. This extraordinarily pubic flaunting there is a strong public interest in making against ‘‘welfare cheats and free-loaders.’’ of the nation’s antitrust laws simply cannot sure that the health of O’Hare remains very With nowhere else to go, these African be tolerated.’’ strong.’’ Americans and poor people who vote will The heart of the antitrust violations, ac- Let’s look at Gore, O’Hare and the public turn to Democrats to save them. Thus, it cording to the study, is found in the de facto interest. will perpetuate a Democratic image as the agreement among the big seven airlines— First, is the ‘‘best public interest’’ served party of big government and undermine Northwest, United, American, Delta, US Air through local or national control of federal Gore’s efforts to downsize and ‘‘reinvent’’ Continental and Trans World—to not signifi- transportation policy? Gore came before the government. cantly compete in each others’ hub markets. Congressional Black Caucus and said that Balanced economic growth better serves The resulting domination by these airlines of ‘‘federalism’’ would be an important issue in the entire region. In Gore’s own political in- their ‘‘own’’ airports (such as Delta in At- the 2000 campaign. Since George W. Bush is terests, he should look anew at O’Hare and lanta, TWA in St. Louis and Northwest in openly a ‘‘states’ righter,’’ I assumed that Peotone and make another assessment of the Twin Cities), forces fliers, especially the vice president was appealing to us for what is truly in the public interest.

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00055 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 H5146 CONGRESSIONAL RECORD — HOUSE July 23, 2002

MEMORANDUM—JULY 13, 2002 to Chicago by the laws of the State of Illi- est. The Lipinski bill proposes to preempt To: Senator Peter Fitzgerald, Congressman nois. Article VII, Section 7 of the Illinois § 38.01 of the Illinois Aeronautics Act, 620 Henry Hyde, Congressman Jesse Jack- Constitution. Under long standing Illinois ILCS 5/38.01. This section requires Chicago to son, Jr. law (‘‘Dillon’s rule’’ followed in almost all of obtain IDOT approval for any grant of fed- From: Joe Karaganis. the 50 states) any powers delegated to a mu- eral funding to be used on airport projects Re: Impact of the Lipinski/Oberstar Bill on nicipality by the General Assembly under which the Illinois General Assembly has au- Illinois Law and Unchecked Condemna- this constitutional provision are narrowly thorized Chicago to construct. This is an im- tion Powers for Chicago to Condemn construed against assertions of authority by portant financial oversight tool (created by Land in Other Communities. the municipality. the Illinois General Assembly as a condition 2. The Illinois General Assembly has dele- Sandy Murdock asked me to give you some of a grant of authority to build airports) gated to Chicago the authority to condemn background legal analysis of the impact of which allows the State of Illinois to engage lands in other municipalities for airport pur- the language in the Lipinski/Oberstar bill in financial oversight of airport actions by poses in the Illinois Municipal Code) (65 (see § 3 of the bill) to create a federal law Chicago. Given the widespread abuses in con- ILCS 5/11–102–4) but as an essential element override (preemption) of the Illinois Aero- tract awards that have been documented at of that authority to condemn has expressly nautics Act—specifically as that impact re- O’Hare, the Lipinski (and Durbin) legislation mandated in the Illinois Municipal Code (65 lates to expanding Chicago’s power to engage will literally ‘‘open the chicken coop’’ to ILCS 5/11–102–10) that this grant of authority widespread potential for corruption. in widespread condemnation and demolition to condemn must be in accordance with the of residential and business properties in requirements of the Illinois Aeronautics Act. July 24, 2001. other municipalities outside Chicago’s 3. Acquisition of land by Chicago without Hon. DON YOUNG, boundaries. complying with the Illinois Aeronautics Act Chairman, Transportation and Infrastructure As you know, on July 9, 2002 Judge Hollis is thus not only a violation of the Illinois Committee, Webster of the DuPage County Circuit Court Aeronautics Act, such failure constitutes an Washington, DC. entered a ruling declaring that Chicago had unlawful ultra vires action by Chicago in vio- DEAR CONGRESSMAN YOUNG: I am writing to no authority under Illinois law to acquire lation of the Illinois Constitution and the Il- you about the grave concerns I have with property in other municipalities without linois Municipal Code. Without compliance H.R. 2107, The End Gridlock at Our Nation’s complying first with § 47 of the Illinois Aero- with the Illinois Aeronautics Act, Chicago Critical Airports Act of 2001. I share the con- nautics Act, 620 ILCS 5/47 which requires any has no authority under either Article VII, cerns of Congressmen Henry Hyde, Jerry municipality to first obtain a ‘‘certificate of Section VII of the Illinois constitution and Weller and Philip Crane, who have sent a vir- approval’’ from the Illinois Department of no authority under the Illinois Municipal tually identical letter to you under separate Transportation before making any alteration Code to acquire land in other municipalities. cover. I agree that in H.R. 2107—the attempt or extension of an airport. The Lipinski (and Durbin) legislation to rebuild and expand O’Hare Airport—Con- Prior to her ruling, Chicago had proposed seeks to ‘‘preempt’’ and destroy the Illinois gress is inappropriately violating the Tenth to acquire and demolish over 500 homes in Aeronautics Act, but in doing so the Lipin- Amendment. Bensenville before seeking a certificate of ski (and Durbin) legislation attempts to de- In other contexts—specifically with regard approval. In testimony at the July 9, injunc- stroy and rewrite the framework created by to certain human rights—I believe that the tion hearing before Judge Webster, the lead the Illinois Constitution and the Illinois Mu- Tenth Amendment serves to place limita- IDOT official in charge of the IDOT approval nicipal Code. Why not just abolish state con- tions on the federal government with which process (James Bildilli) testified: stitutions and state statutory codes alto- I disagree. Indeed, in the area of human 1. Without judicial enforcement of the Illi- gether and let Congress rewrite the state rights, I believe new amendments must be nois Aeronautics Act, Chicago could acquire constitutions and state statutory codes of all added to the Constitution to overcome the and demolish all the homes and businesses 50 states? limitations of the Tenth Amendment. How- proposed in Bensenville and Elk Grove (over Beyond the enormous legal implication of ever, building airports is not a human right. 500 homes and dozens of businesses) and only such action, the practical effect of the Lipin- Therefore, in the present context, I agree ski (and Durbin) legislation is to do exactly after such acquisition and demolition, would that building airports is appropriately with- what Judge Webster said Illinois law pro- IDOT some years later hold a hearing in in the purview of the states. which IDOT would hear evidence and con- hibits: I believe attempts by Congress to strip the 1. The Lipinski (and Durbin) legislation sider whether the harm caused by the acqui- authority of Governor Ryan and the Illinois will ‘‘authorize’’ Chicago to condemn land in sition and demolition justified IDOT’s ap- Legislature over the delegation and author- other municipalities even though no such au- proval of the project. Essentially IDOT, in ization to Chicago of state power to build thorization exists for Chicago to do so under reaching its decision on the certificate of ap- airports—along with the authority of gov- the Illinois Constitution or Illinois Munic- proval, would hear and consider evidence of ernors and state legislatures in a host of ipal Code. the harm caused by the acquisition and dem- other states such as Massachusetts (Logan), olition and consider this harm as a basis of 2. The Lipinski (and Durbin) legislation will ‘‘authorize’’ Chicago to engage in unfet- New York (LaGuardia and JFK), New Jersey its decision—but only after the harm (and tered condemnation authority with the abil- (Newark) California (San Francisco airport), destruction) had been inflicted. ity to acquire and destroy thousands of and the State of Washington (Seattle)—raise 2. Without judicial enforcement of the Illi- homes and businesses in many other munici- serious constitutional questions. nois Aeronautics Act, Chicago could acquire palities—all in violation of the limits on Chi- Under the framework of federalism estab- by condemnation or otherwise all of cago’s state constitutional and state Munic- lished by the federal constitution, Congress Bensenville, Wood Dale, Elk Grove Village ipal Code authority imposed by the Illinois is without power to dictate to the states how (thousands of homes and businesses) and any Constitution and Illinois General Assembly. the states delegate power—or limit the dele- other municipality—without any need for a As Senator Fitzgerald has pointed out in gation of that power—to their political sub- prior certificate of approval from IDOT his remarks in his recent colloquy with Sen- divisions. Unless and until Congress decides under § 47. ator Durbin, the Lipinski (and Durbin) legis- that the federal government should build air- Thankfully, Judge Webster rejected Chi- lation would give Chicago unfettered ability ports, airports will continue to be built by cago and IDOT’s claims and applied and en- to condemn properties outside the City of states or their delegated agents (state polit- forced the plain language of the statute— Chicago. If applied in other states, it would ical subdivisions or other agents of state prohibiting Chicago from acquiring and de- ‘‘authorize’’ one municipality (whichever power) as an exercise of state law and state molishing homes and businesses in another municipality Congress chose) to disregard power. Further compliance by the political municipality without first obtaining a cer- the limits on that municipality’s delegated subdivision of the oversight conditions im- tificate of approval from IDOT. powers created by that state’s constitution posed by the State legislature as a condition It is important for you to understand that and state statutory code) and to condemn of delegating the state law authority to the preemption approach of the Lipinski Bill land in any other municipality in that build airports is an essential element of that (as well as Durbin’s) will not simply feder- state—in total federal preemption of that delegation of state power. If Congress strips ally destroy key provisions of the Illinois state’s constitution and municipal code. away a key element of that state law delega- Aeronautics Act (namely §§ 47, 48, and 38.01). As we have said before, such radical action tion, it is highly unlikely that the political The Lipinski legislation has the effect of de- is a blatant violation of the federalism/Tenth subdivision would continue to have the stroying the entire framework that Illinois Amendment Structure of the federal Con- power to build airports under state law. The has created under the Illinois Constitution stitution. But even if Congress did have such political subdivision’s attempts to build run- and Illinois Municipal Code for preventing power, should Congress be overriding state ways would likely be ultra vires (without au- abuses of the state law condemnation power constitutions and municipal codes to give thority) under state law. by municipalities. Here is the Illinois con- federal ‘‘authorization’’ to one municipality Under the Tenth Amendment and the stitutional and Illinois statutory framework in a state to run roughshod over other mu- framework of federalism built into the Con- as upheld and enforced by Judge Webster: nicipalities in that state in violation of the stitution, Congress cannot command the 1. Under the Illinois Constitution, Chicago state constitution and municipal statutory States to affirmatively undertake an activ- has only that condemnation authority to code? ity. Nor can Congress intrude upon or dic- condemn lands in other municipalities for Postscript: There is another aspect of the tate to the states, the prerogatives of the airport purposes that is expressly delegated Lipinski preemption which may be of inter- states as to how to allocate and exercise

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00056 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5147 state power—either directly by the state or the state’s political subdivisions—whether my first campaign. I won on this issue. It re- by delegation of state authority to its polit- that subdivision be Chicago, Bensenville, or mains my first priority. It was the subject of ical subdivisions. Elmhurst—is a matter left by our system of my first speech in Congress. And it was the As stated by the United States Supreme federalism and our federal Constitution to topic of my first debate in Washington. Court. the exclusive authority of the states. As I am elated that this issue—my issue—is [T]he Framers explicitly chose a Constitu- stated by the Seventh Circuit in Commis- now before the Congress. And while I thank tion that confers upon Congress the power to sioners of Highways v. United States, 653 Members of the Senate for their interest in regulate individuals, not States. . . . We have F.2d 292 (7th Cir. 1981) (quoting Hunter v. trying to resolving this regional and na- always understood that even where Congress City of Pittsburgh, 207 U.S. 161, 178 (1907)): tional crisis, I must say that HR 3479 as has the authority under the Constitution to Municipal corporations are political sub- amended falls woefully short of providing an pass laws requiring or prohibiting certain divisions of the State, created as convenient adequate, equitable solution. acts, it lacks the power directly to compel agencies for exercising such of the govern- Please know that I do not oppose fixing the States to require or prohibit those Acts. mental powers of the State as may be en- O’Hare’s problems. But I have many, many New York v. United States, 505 U.S. 144, at trusted to them. For the purpose of exe- grave concerns about this specific expansion 166 (1992) (emphasis added) cuting these powers properly and efficiently plan. Concerns about cost. About safety. It is incontestable that the Constitution they usually are given the power to acquire, About environment impact. About federal established a system of ‘‘dual sovereignty.’’ hold, and manage personnel and real prop- precedence. And about constitutionality. Printz v. United States, 521 U.S. 898, 918 erty. The number, nature and duration of the Clearly this bill sets dangerous precedence (1997) (emphasis added) by stating that Congress—not the FAA, not Although the States surrendered many of powers conferred upon these corporations their powers to the new Federal Govern- and the territory over which they shall be Departments of Transportation, not aviation ment, they retained ‘‘a residuary and invio- exercised rests in the absolute discretion of experts—but Congress shall plan and build lable sovereignty,’’ The Federalist No. 39, at the State. . . . The State, therefore, at its airports. Further, it ignores the 10th Amend- 245 (J. Madison). This is reflected throughout pleasure may modify or withdraw all such ment to the U.S. Constitution. It guts and/or the Constitution’s text. powers, may take without compensation undermines state laws and environmental Residual state sovereignty was also im- such property, hold it itself, or vest it in protections. And it sidesteps the checks-and- plicit, of course, in the Constitution’s con- other agencies, expand or contract the terri- balances and the public hearing process. ferral upon Congress of not all governmental torial area, unite the whole or a part of it My focus today is the same as it’s always powers, but only discrete, enumerated ones, with another municipality, repeal the char- been. Finding the best fix. And that best fix Art. I, Sec. 8, which implication was ren- ter and destroy the corporation. All this may is the construction of a third Chicago airport dered express by the Tenth Amendment’s as- be done, conditionally or unconditionally, near Peotone, Illinois. The plain truth is sertion that ‘‘[t]he powers not delegated to with or without the consent of the citizens, Peotone could be built in one-third the time the United States by the Constitution, nor or even against their protest. In all these re- at one-third the cost. For taxpayers and prohibited by it to the States, are reserved spects the State is supreme, and its legisla- travelers, it’s a no-brainer. to the States respectively, or to the people.’’ tive body, conforming its action to the state Unfortunately, this bill mandates expan- This separation of the two spheres is one of constitution, may do as it will, unrestrained sion of O’Hare yet pays mere lip service to the Constitution’s structural protections of by any provision of the Constitution of the Peotone. It puts the projects on two separate liberty. ‘‘Just as the separation and inde- United States. Commissioners of Highways, and unequal tracks. That is my opinion. pendence of the coordinate branches of the 653 F.2d at 297 That is also the opinion of the Congressional Federal Government serve to prevent the ac- Chicago has acknowledged that Illinois has Research Service, whose analysis I will pro- cumulation of excessive power in any one delegated its power to build and operate air- vide to you. branch, a healthy balance of power between ports to its political subdivisions by express the States and the Federal Government will statutory delegation. 65 ILCS 5/11–102–1, 11– FEDERAL STUDY CONFIRMS AIRPORT DEAL reduce the risk of tyranny and abuse from ei- 102–2 and 11–102–5. These state law delega- SHORTCHANGES PEOTONE ther front. Id at 921 quoting Gregory v. tions of the power to build airports and run- An analysis released today by the inde- Ashcroft, 501 U.S. 452 at 458 (1991) ways are subject to the Illinois Aeronautics pendent, non-partisan research arm of Con- The Supreme Court in Printz went on to Act requirements—including the require- gress confirmed what Peotone proponents emphasize that this constitutional struc- ment that the State approve any alterations have said all along: The Ryan-Daley airport tural barrier to the Congress intruding on of the airport—by their express terms. Any agreement puts O’Hare on the fast track and the State’s sovereignty could not be avoided attempt by Congress to remove a condition just pays lip service to Peotone. by claiming either a) that the congressional or limitation imposed by the Illinois Legisla- An analysis released today by the Congres- authority was pursuant to the Commerce ture on the terms of that state law delega- sional Research Service concludes that the Power and the ‘‘necessary and proper clause tion of authority would likely destroy the proposed National Aviation Capacity Expan- of the Constitution or b) that the federal law delegation of state authority to build air- sion Act puts the two projects on separate ‘‘preempted’’ state law under the Supremacy ports by the Illinois Legislature to Chicago— and unequal tracks. Clause. 521 U.S. at 923–924. leaving Chicago without delegated state leg- The CRS analysis states that the Federal It is important to note that Congress can islative authority to build runways and ter- regulate—but not affirmatively command— Government ‘‘shall construct the runway re- minals at O’Hare or Midway. The require- design plan’’ at O’Hare but would merely the states when the state decides to engage ment that Chicago receive a state permit is in interstate commerce. See Reno v. Condon, ‘‘review’’ and give ‘‘consideration’’ to the an express condition of the grant of state au- Peotone Airport project. 528 U.S. 141 (2000). Thus in Reno, the Court thority and an attempt by Congress to re- upheld an act of Congress that restricted the In reaction to the release of today’s report, move that condition or limitation would ability of the state to distribute personal Congressman Jackson reiterated his opposi- mean that there was no continuing valid drivers’ license information. But Reno did tion to the measure. ‘‘This study unmasks state delegation of authority to Chicago to not involve an affirmative command of Con- the bare truth about the agreement between build airports. Chicago’s attempts to build gress to a state to affirmatively undertake the Mayor and the Governor. For those new runways would be ultra vires under an activity desired by Congress. Nor did claiming that the deal is good for the Third state law as being without the required state Reno involve (as proposed here) an intrusion Airport, it’s not. The masquerade ball is legislative authority. by the federal government into the delega- over,’’ Jackson said. Very truly yours, tion of state power by a state legislature— ‘‘Peotone has been stuck in the paralysis JESSE L. JACKSON, JR. and the state legislature’s express limits on of analysis for 15 years. We don’t need any Member of Congress. that delegation of state power—to a state po- more reviews. We need a Third Airport,’’ litical subdivision. Jackson said. ‘‘Peotone can be built faster H.R. 2107 would involve a federal law which STATEMENT OF U.S. REPRESENTATIVE JESSE cheaper, safer, and cleaner than expanding would prohibit a state from restricting or L. JACKSON, JR. BEFORE THE U.S. SENATE O’Hare, and presents a more secure and more limiting the delegated exercise of state COMMERCE COMMITTEE—THURSDAY, MARCH permanent solution to Illinois’ aviation cri- power by a state’s political subdivision. In 21ST, 2002 WASHINGTON, DC sis. This is shortsighted legislation and a bad this case, the proposed federal law would I want to commend and thank Members of deal for the public.’’ seek to bar the Illinois Legislature from de- the Committee on Commerce, Science and The CRS report states that the Lipinski- ciding the allocation of the state’s power to Transportation for this opportunity to again Durbin bill ‘‘specifically states that the build an airport or runways—and especially discuss the future of Chicago’s airports. As (FAA) Administrator ‘shall construct’ the the limits and conditions imposed by the you know, I sent a letter to each of you stat- runway redesign plan; however, there is no State of Illinois on the delegation of that ing my opposition to this bill. Many Mem- parallel language regarding the construction power to Chicago. The law is clear that Con- bers responded favorably, and for that I of the south suburban airport.’’ gress has no power to intrude upon or inter- thank them. Today, my position has not CRS concludes that the bill ‘‘provides for fere with a state’s decision as to how to allo- changed. the Administrator’s review of the Peotone cate state power. As you know, my commitment to resolving Airport project (and) provides for the expan- A state’s authority to create, modify, or Chicago’s aviation capacity crisis predates sion of O’Hare. The provisions appear to op- even eliminate the structure and powers of my days in Congress. I ran on this issue in erate independently of each other and are

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00057 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 H5148 CONGRESSIONAL RECORD — HOUSE July 23, 2002 not drafted in parallel language, and provide gressional committees have virtually ple- terms and conditions as the Administrator different directions to the Administrator.’’ nary authority to elicit information which is deems necessary to protect the interests of necessary to carry out their legislative func- the United States. CONGRESSIONAL RESEARCH SERVICE tions from executive agencies, private per- (4) Chicago shall be deemed the owner and MEMORANDUM—FEBRUARY 6, 2002 sons, and organizations. Various decisions of operator of each element of the runway re- To: Hon. Jesse L. Jackson, Jr., Attention: the Supreme Court have established that the configuration plan under section 40117 and George Seymour oversight and investigatory power of Con- chapter 471 of title 49, United States Code, From: Douglas Reid Weimer, Legislative At- gress is an inherent part of the legislative notwithstanding any other provision of this torney, American Law Division function and is implied from the general section or any of the provisions in such title Subject: Examination of Certain Provisions vesting of the legislative power of Congress. referred to in this subsection.’’ The Administrator is directed to construct of H.R. 3479: National Aviation Capacity Thus, courts have held that Congress’ con- the O’Hare runway plan as a Federal project Expansion Act stitutional authority to enact legislation and appropriate money inherently vests it if certain conditions are met: (1) construc- BACKGROUND with power to engage in continuous over- tion of the runway design plan has not begun This memorandum summarizes various sight. The Supreme Court has described the and is not expected to begin by December 1, telephone discussions between George Sey- scope of this power of inquiry as to be ‘‘as 2004; (2) Chicago agrees to the runway plan mour and Rick Bryant of your staff, and penetrating and far-reaching as the potential as a Federal project without cost to the Douglas Weimer of the American Law Divi- power to enact and appropriate under the United States, with certain exceptions; (3) sion. Your staff has expressed interest in cer- Constitution.’’ Chicago enters into an agreement to protect tain provisions of H.R. 3470, the proposed Na- Specific interest is focused on the language Federal Government interests concerning tional Aviation Capacity Expansion Act ‘‘shall consider’’ used in the second sentence construction, operation, and maintenance of (‘‘bill’’). These provisions are examined and of the subsection. In the context of this sub- the runway project; (4) the agreement pro- analyzed in the following memorandum. section, it should not necessarily be consid- vides that Chicago take over the ownership The bill contains various provisions relat- ered to mean the implementation of an ac- and operation control of each element of the ing to the expansion of aviation capacity in celerated approval/construction process for runway design plan upon its completion; (5) the Chicago area. Among the provisions con- the airport. While these events may occur, Chicago provides, without cost, the land, tained in the bill are provisions relating to such a course of action is not specifically easements, right-of-way, rights of entry, and O’Hare International Airport (‘‘O’Hare’’), provided by the legislation. other interests in land/property as are re- Meigs Field, a proposed new carrier airport Your staff has also focused on subsection quired to allow the construction of the run- located near Peotone, Illinois (‘‘Peotone’’), (f), dealing with the proposed federal con- way plan as a Federal project and to protect and other projects. Your office has expressed struction at O’Hare. The bill provides: the interests of the Federal Government in repeated concern that the news media and ‘‘(f) FEDERAL CONSTRUCTION.— its construction, operation, maintenance, various commentators have reported that (1) On July 1, 2004, or as soon as practicable and use; and (6) the Administrator is satis- the bill would apparently implement the var- thereafter, the Administrator shall con- fied that the redesign plan costs will be paid ious projects in a similar manner and that struct the runway redesign plan as a Federal from the usual sources used for airport de- similar legislative language is used to imple- project, if— velopment projects of similar kind and ment the various projects. The news articles (A) the Administrator finds, after notice scope. that you have cited concerning the bill tend and opportunity for public comment, that a Paragraph 2 provides that the Adminis- to report the various elements of the bill continuous course of construction of the run- trator ‘‘may’’ make an agreement with Chi- without distinguishing the bill language and way design plan has not commenced and is cago, whereby Chicago will provide the work the differences as to the means in which the not reasonably expected to commence by De- described above in paragraph (1) for the ben- various projects may be implemented. cember 2, 2004; efit of the Administrator. It should be noted ANALYSIS (B) Chicago agrees in writing to construc- that the use of the word ‘‘may’’ would appear tion of the runway redesign plan as a Federal The chief purpose of the bill it so expand to make this language optional, and would project without cost to the United States, aviation capacity in the Chicago area, not necessarily require the Administrator to except such funds as may be authorized through a variety of means. Section 3 of the enter into such agreement with Chicago. under chapter 471 of title 49, United States Paragraph 3 authorizes and directs the Ad- bill deals with airport redesign and other Code, under authority of paragraph (4); ministrator to acquire in the name of the issues. Your staff has focused upon the inter- (C) Chicago enters into an agreement, ac- Federal Government those property interests pretation and the bill language of two par- ceptable to the Administrator, to protect the needed for the redesign plan, subject to the ticular subsections—(e) and (f)—of Section 3, interests of the United States Government terms and conditions that the Administrator which are considered below. with respect to the construction, operation, feels are necessary to protect the interests of ‘‘(e) SOUTH SUBURBAN AIRPORT FEDERAL and maintenance of the runway redesign the United States. FUNDING.—The Administrator shall give pri- plan; Paragraph 4 provides that Chicago will be ority consideration to a letter of intent ap- (D) the agreement with Chicago, at a min- deemed to be the owner and operator of each plication submitted by the State of Illinois imum provides for Chicago to take over own- element of the runway reconfiguration plan, or a political Subdivision thereof for the ership and operations control of each ele- notwithstanding any other provision of this construction of the south suburban airport. ment of the runway redesign plan upon com- section. The Administrator shall consider the letter pletion of construction of such element by Discussion has focused on the different leg- not later than 90 days after the Adminis- the Administrator; islative language used in subsection (e) and trator issues final approval of the airport (E) Chicago provides, without cost to the (f). Subsection (f) specifically states that the layout plan for the south suburban airport.’’ United States Government (except such Administrator ‘‘shall construct’’ the runway If enacted, this bill language would relate to funds as may be authorized under chapter 471 redesign plan; however, there is no parallel the federal funding for the proposed airport of title 49, United States Code, under the au- language regarding the construction of the to be constructed at Peotone. The ‘‘Adminis- thority of paragraph (4)), land easements, south suburban airport in subsection (e). The trator’’ refers to the Administrator of the rights-of-way, rights of entry, and other in- provisions of the subsections appear to be Federal Aviation Administration. The Ad- terests in land or property necessary to per- independent of each other and provide very ministrator is directed to give priority con- mit construction of the runway redesign different directions to the Administrator, sideration to a letter of intent application plan as a Federal project and to protect the Hence, it may be interpreted that subsection (‘‘application’’) submitted by Illinois, or a interests of the United States Government in (f) would authorize runway construction (if political subdivision for the construction of its construction, operation, maintenance, certain conditions are met), and subsection the ‘‘south suburban airport’’ the proposed and use; and (e) is concerned primarily with the review airport at Peotone. (F) the Administrator is satisfied that the and the consideration of an airport construc- The Administrator is given specific direc- costs of the runway redesign plan will be tion plan. tions concerning the application and for the paid from sources normally used for airport It is possible that the Administrator’s ac- time consideration of the application. Con- development projects of similar kind and tions concerning the implementation of this cern has been expressed that the Adminis- scope. legislation, if enacted, may be subject to ju- trator is given certain duties and directions, (2) The Administrator may make an agree- dicial review. Judicial review of agency ac- but that there is no specific language to en- ment with the City of Chicago under which tivity or inactivity provides control over ad- sure and/or to compel that the Adminis- Chicago will provide the work described in ministrative behavior. Judicial review of trator will comply with the Congressional paragraph (1), for the benefit of the Adminis- agency action/inaction may provide appro- mandate, if the Administrator does not trator. priate relief for a party who is injured by the choose to follow the Congressional direction. (3) The Administrator is authorized and di- agency’s action/inaction. The Administra- Congress possesses inherent authority to rected to acquire in the name of the United tive Procedure Act (‘‘APA’’) provides general oversee the project, as well as the Adminis- States all land, easements, rights-of-way, guidelines for determining the proper court trator’s compliance with the statutory re- rights of entry, or other interests in land or in which to seek relief. Some statutes pro- quirements, by way of its oversight and ap- property necessary for the runway redesign vide specific review proceedings for agency propriations functions. Congress and con- plan under this section, subject to such actions. Subsection (h) of the bill provides

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00058 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5149 for judicial review of an order issued by the late into a national crisis. Once the nation’s even where Congress has the authority under Administrator. The bill provides that the bill best and busiest crossroads, O’Hare is now its the Constitution to pass laws requiring or may be reviewed pursuant to the provisions worst choke point—overpriced, overburdened prohibiting certain acts, it lacks the power contained at 49 U.S.C. § 46110. and overwhelmed. directly to compel the States to require or If the Administrator does not issue an And to think it was avoidable. This debate prohibit those acts.’’ [New York v. United order and judicial review is not possible dates back to 1984 when the Federal Aviation States, 1992] under this provision, then it is possible that Administration determined that Chicago was Supporters have cited the Commerce ‘‘nonstatutory review’’ may occur. When quickly running out of capacity. The FAA Clause in defending his legislation. But the Congress has not created a special statutory directed Illinois, Indiana and Wisconsin to Supreme Court in Printz v. United States procedure for judicial review, an injured conduct a feasibility study for a new airport. specifically emphasized the 10th Amendment party may seek ‘‘nonstatutory review.’’ This The exhaustive study of numerous sites con- barrier to Congress intruding on a state’s review is based upon some statutory grant of cluded almost 10 years ago that gridlock sovereignty by saying that it could not be subject matter jurisdiction. Therefore, a could be best avoided by building a south avoided by claiming either, one, that con- party who wants to invoke nonstatutory re- suburban airport. The State of Illinois then gressional authority was pursuant to the view will look to the general grants of origi- drafted detailed plans for an airport near Commerce Power, or, two, that federal law nal jurisdiction that apply to the federal Peotone. ‘‘preempted’’ state law under the Supremacy courts. It is possible that an available basis Unfortunately, despite the FAA’s dire Clause. for jurisdiction in this case—if the Adminis- warning and the State’s best efforts, I Chicago has acknowledged Illinois’ author- trator does not carry out his/her Congres- watched in amazement as the City of Chi- ity to build and operate airports by express sional mandate—may be under the general cago went to extremes to thwart and delay statutory delegation through the Illinois federal question jurisdiction statute which any new capacity. Aeronautics Act, including the requirement authorizes the federal district courts to en- In the late 1980s, Mayor Daley mocked the that the State approve any airport alter- tertain any case ‘‘arising under’’ the Con- idea of a third airport. By 1990, the City did ations. Under the 10th Amendment, if Con- stitution or the laws of the United States. an about-face and proposed building a third gress strips away a key element of the Illi- An action for relief under this provision is airport within the City. The City even initi- nois law, Chicago’s attempt to build runways usually the most direct way to obtain non- ated federal legislation creating the Pas- would likely be ultra vires (without author- statutory review of an agency action. Hence, senger Facility Charge (PFC) to pay for it. ity) under Illinois law. it is possible that an action could be brought But two years later the City reversed itself Moreover, H.R. 2017 converts the concept of under this statute to compel the Adminis- again and abandoned the plan, yet continued dual sovereignty into tri-sovereignty, by trator to comply with the provisions con- to collect $90 million a year in PFCs. This going beyond states’ rights to city rights. It tained in the bill. summer, the City told the Illinois Legisla- gives Mayor Daley (and the other local offi- CONCLUSION ture that O’Hare needed no new capacity cials in charge of the 68 largest airports in until the year 2012, then, in yet another re- This memo has summarized staff discus- the country) a greater say over national versal, three weeks ago declared O’Hare sion concerning certain provisions contained aviation policy than the federal government needed six new runways. in the proposed National Aviation Capacity or the fifty governors. As the City was spending hundreds of mil- Expansion Act. Subsection (e) provides for Indeed, H.R. 2107 sets federalism on its lions of dollars on consultants to tell us that the Administrator’s review of the Peotone head. It makes about as much sense as put- the City didn’t, did, didn’t, did need new ca- Airport project. Subsection (f) provides for ting the local police department in charge of pacity, it continued to be consistent on the the expansion of O’Hare. The provisions ap- national defense. one thing—fighting to kill the third airport. pear to operate independently of each other, Such legislation won’t improve aviation Sadly, that opposition was never based on services. In fact, it increases the likelihood are not drafted in parallel language, and pro- substantive issues—regional capacity, public vide different directions to the Adminis- for a constitutional challenge that will fur- safety or air travel efficiency. Instead it was ther prolong this crisis. trator. The Administrator is given certain rooted in protecting patronage, inside deals responsibilities under both subsections. Con- So, from a practical standpoint, I urge the and the status quo. In fact, earlier this year subcommittee to reject this measure, to re- gress possesses plenary oversight authority the Chicago Tribute won a Pulitzer Prize for over federally funded projects. This would ject cramming more planes into one of the documenting the ‘‘stench at O’Hare.’’ nation’s most overcrowded airport, to reject provide oversight Administrator is given cer- Still, for eight years, City Hall leveraged tain responsibilities under both subsections. turning O’Hare into the world’s largest con- the Clinton FAA to stall Peotone. The FAA, struction site for the next 20 years, and to Congress possesses plenary oversight author- ignoring its own warnings of approaching ity over federally funded projects. This reject sticking the taxpayers with an out- gridlock, conspired with the city to: rageous bill. would provide oversight over the Adminis- (1) Mandate ‘‘regional consensus,’’ thus re- trator and his/her actions. A judicial pro- I strongly urge the committee to reject quiring Chicago mayoral approval for any this unprecedented, unwise and unconstitu- ceeding may be possible against the Admin- new regional airport; istrator to compel the Administrator to ful- tional attack against our fifty states and our (2) Remove Peotone from the NPIAS list in Founding Fathers. Thank you. fill the statutory responsibilities provided by 1997, after it emerged as the frontrunner. the bill. Peotone had been on the NPIAS for 12 years; SUBURBAN O’HARE COMMISSION, FEBRUARY 13, (3) Hold up the Peotone environmental re- 2002—A BETTER PLAN FOR CURING THE STATEMENT OF U.S. REPRESENTATIVE JESSE view from 1997 to 2000. O’HARE AIRPORT BOTTLENECK L. JACKSON JR. BEFORE THE U.S. HOUSE In short, the same parties who created this AVIATION SUBCOMMITTEE—WEDNESDAY, AU- aviation mess are now saying ‘‘trust us to Chicago—A plan for relieving the Chicago GUST 1ST, 2001 WASHINGTON, DC clean it up’’ with H.R. 2107. But their hands aviation bottleneck was unveiled today that I want to thank Members of the House are too dirty and their interests are too nar- costs less, is more efficient, less destructive Aviation Subcommittee for this opportunity row. Proponents of this legislation claim to and can be realized quicker than a ‘‘com- to discuss Chicago’s aviation future. As you be taking the high road. But this is a dead promise’’ plan that Chicago Mayor Richard may know, I ran on this issue in 1995, and end. M. Daley and Illinois Gov. George Ryan are have supported expanding aviation capacity Fortunately, there is a better alternative. trying to rush through Congress. by building a third regional airport in Compared to O’Hare expansion, Peotone The plan was crafted by the Suburban Peotone, Illinois. could be built in one-third the time at one- O’Hare Commission, a council of govern- Let me begin with a personal anecdote third the cost—both important facts given ments representing a million residents living that, from my perspective, illustrates why that the crisis is imminent and that the pub- around O’Hare Airport. we’re here. I won my first term in a special lic will ultimately pay for any fix. The plan includes runway, terminal and election and on December 14th, 1995 took the Site selection aside, however, there is yet other improvements at O’Hare International Oath of Office. Congressman Lipinski, my another, even bigger problem with H.R. 2107. Airport, to make it more efficient, competi- good friend and fellow Chicagoan whose dis- It is the United States Constitution. tive and convenient. The plan also includes trict borders mine, was present and his was H.R. 2107 strips Illinois Governor George alternatives to the costly and destructive the seventh or eighth hand I shook as a new Ryan of legitimate state power in an appar- ‘‘western access’’ proposed in the Daley- Member. He told me then: ‘‘Young man, I ent violation of the ‘‘reserved powers’’ clause Ryan plant. The centerpiece of the plan re- want you to know that I can be very helpful of the 10th Amendment. mains, as it has for well over a decade, a to you during your stay in Congress, but Under the 10th Amendment, Congress can- major hub airport in the south suburbs that you’re never going to get that new airport not command Illinois to affirmatively under- had been urged by experts and government you spoke about during your campaign.’’ take an activity, nor can it intrude upon Illi- officials from three states, and would be Since then, Congressman Lipinski has been nois’ prerogative to exercise or delegate its operational now if not for obstruction from helpful and we’ve worked together on many power. As stated by the United States Su- Chicago Mayor Richard M. Daley. The plan important issues. But, he’s also made good preme Court: ‘‘[T]he Framers explicitly provides for many more flights to the region, on his word to block a third airport. chose a Constitution that confers upon Con- and, consequently, many more jobs. It is this rigid stance by many Chicago of- gress the power to regulate individuals, not ‘‘We always have been in favor of a strong ficials that’s allowed a local problem to esca- States . . . We have always understood that O’Hare Airport because of its importance to

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00059 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 H5150 CONGRESSIONAL RECORD — HOUSE July 23, 2002 our communities and to the regional econ- The SOC Solution also would increase com- Key to the SOC Solution is the construc- omy,’’ said John Geils, SOC Chairman and petition at O’Hare, through terminal and tion of a truly regional hub airport in the president of the Village of Bensenville. ‘‘This other facilities improvements so that air South Suburbs, rather than an inadequate will come as a surprise only to those who travelers using the competition are not ‘‘reliever’’ airport as envisioned under the have been taken in by the rhetoric of our op- treated as second-class customers. Funding Daley-Ryan plan. Just as New York City and ponents, who maliciously tried to portray us of O’Hare improvements would be discon- Washington, D.C. have more than one hub as anti-O’Hare zealots, willing to damage or nected from a complicated bonding scheme airport, a true regional airport in the South even destroy O’Hare. Our plan will expand that allows United and American airlines to Suburbs would give Chicago the kind of po- the region’s aviation and economic growth; become more entrenched and to continue to tential it needs with three hub airports the Daley-Ryan plan will stifle that growth. charge anti-competitive fares. In addition, (O’Hare, Midway and Peotone) to maintain ‘‘The claimed benefits—including delay re- some of the lucrative gambling revenues, its aviation dominance for decades. Despite ductions, job increases, improved safety, now going to enrich political insiders, would the long-made assertions by entrenched in- be used for a competitive makeover of greater competition and less noise—of the terests, such as United and American air- Daley-Ryan O’Hare expansion plan are un- O’Hare. SOC’s plan also would provide better safety lines, that the Chicago area didn’t need a true. We have a plan that is better for the and environmental protections. Every home second hub airport, Midway already is devel- entire region, and not just for Chicago City impacted by noise at O’Hare and Midway oping into a hub simply because of market Hall and its big business friends.’’ Geils said. would be soundproofed, instead of a select forces. With Midway reaching capacity in Among the improvements are a realisti- few as provided under the current, flawed just a few years, and O’Hare already at ca- cally modernized O’Hare, instead of the im- standards adopted by Chicago. O’Hare neigh- pacity, the sounds of ‘‘no one will come to possible attempt by Daley and Ryan to stuff bors would be spared the concentration of air Peotone’’ no longer are heard. ten pounds of potatoes into a five-pound pollution brought by a doubling of flights at Finally, the SOC Solution will protect tax- sack. Terminals would be updated, with an what is already the state’s largest single air payers by creating an oversight board of im- eye to matching them with capacity and polluter. Under the Daley-Ryan plan, O’Hare provements at all airports, including the making them more user friendly. Selected neighbors would find themselves in federally south suburban airport and Midway. runways would be widened to accommodate required crash zones at the end of runways, the large new jets, such as the A380X, thus forcing them to either give up their homes or ‘‘The SOC Solution is not a fragmented increasing the number of passengers the air- live in devalued property in great risk. Be- plan that simply focuses on O’Hare, which port can serve, without increasing air traffic. cause most of the region’s air traffic growth under the Daley-Ryan proposal is merely an Western access and a bypass route would be would use the South Suburban airport where instrument for extending the political and built on airport property, skirting O’Hare to pollution and safety buffers are required economic might of a select few,’’ said Geils. the south—as originally planned, thus avoid- under current federal standards, fewer total ‘‘Ours is a plan for a regional airport sys- ing the destruction of uncounted homes and people in the region would be subjected to tem—one that is based on common sense and businesses, as under the Daley-Ryan plan. health and safety risks. 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 to the Delay Problem at O’Hare? ...... No—runways will not be built for years and by the time they are built, Yes—delays addressed immediately by FAA recommended demand manage- delays will increase with increased traffic growth. ment techniques such as proposed for LaGuardia. Which Plan Provides Greatest Capacity Growth for Region? ...... Max increase of 700,000 operations; likely much less ...... 1,600,000 operations capacity at South Suburban Airport—far more than Daley-Ryan plan. Which Plan Produces Greatest Opportunity for New Competition and Lower Daley-Ryan O’Hare plan solidifies and expands United-American monopoly Wide open opportunity for major competition—both at O’Hare and at South Fares?. dominance—hundreds of millions in losses to Chicago travelers each Suburban Airport. year. Which Plan Provides Greater Job Growth? ...... Daley-Ryan O’Hare plan job growth of 195,000 jobs dependent on 700,000 Suburban O’Hare Commission plan provides 1.6 million new operations ca- new operations capacity at O’Hare—real capacity unlikely and far less pacity in addition to O’Hare—far more jobs than Daley-Ryan O’Hare plan. jobs. Which Plan Makes Peotone A Reality? ...... No provision in Daley-Ryan O’Hare plan to actually fund and build SOC plan borrows from idea by Senator Patrick O’Malley to use huge excess Peotone—an exercise in political rhetoric with little likelihood of success. gambling income now going to political insiders to fund Peotone con- struction. Which Plan Produces Less Toxic Air Pollution Impact on Surrounding commu- Daley-Ryan O’Hare plan makes toxic emissions at O’Hare much worse— Huge non-residential land buffer at Peotone protects public health and pre- nities?. 900,000 flights to 1, 600,000—no environmental buffer. vents residential exposures. Which Plan Produces Less Noise Impact on Surrounding communities? ...... Daley-Ryan O’Hare plan makes aircraft noise at O’Hare much worse— Huge non-residential land buffer at Peotone protects against residential 900,000 flights to 1, 600,000—no environmental buffer. noise exposure. Which Plan is Safer? ...... Daley-Ryan O’Hare plan reduces safety margins at O’Hare—more congested SOC plan much safer because South Suburban Airport site can address run- airspace, less safety on runways and taxiways, occupied runway crash way safety concerns much easier than O’Hare because much more land zones. available. Which Plan Provides Justice and Equity for the South Side and South Suburbs? Daley-Ryan O’Hare plan guarantees exactly what Daley wants—an empty SOC plan insures construction of major new airport with adequate funding. cornfield at Peotone. Which Plan Preserves State Law protections? ...... Daley-Ryan O’Hare plan destroys state law protections for public, health, the SOC plan preserves and protects state law safeguards for our environment, environment, the consumer. public health and the consumer. Which Plan Provides Greatest Economic Benefits Over Costs? ...... Daley-Ryan O’Hare plan has huge costs that likely far exceed the economic SOC plan provides much greater regional capacity, eliminates the delay benefits. (which are far less than claimed). problem in the short and long 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 O’Hare plan claims it reduces bad weather delays by 95% and overall delay by Total bad weather and good weather delays will increase dramatically under Daley-Ryan O’Hare plan. 79%. Delay Savings Untrue. Daley-Ryan O’Hare plan claims it will produce delay savings of $370 million annually and pas- Daley-Ryan O’Hare plan will increase total delay costs by hundreds of millions of dollars annually. senger delay savings of $380 million annually. Cost Claims Untrue. Daley-Ryan O’Hare plan says cost is: $6.6 billion ...... Real Costs—$15 billion to $20 billion. Capacity Claims Untrue. Daley-Ryan O’Hare plan claims it will meet aviation needs of Region ...... Real Capacity of Daley-Ryan O’Hare plan: Increase O’Hare passenger ‘‘enplanements’’ (boarding passengers) from current 34 million to 76 million ...... Falls far short of 76 million passenger capacity and far short of capacity of 1,600,000 operations. Increase O’Hare operational capacity from 900,000 to 1,600,000 operations ...... Leaves region with huge capacity gap for both passengers and aircraft operations. Peotone Claim untrue. Daley-Ryan O’Hare plan says they will build Peotone ...... Daley-Ryan O’Hare plan destroys 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 plan says it will create 195,000 jobs ...... Actual jobs fall far short of the 195,000 jobs claimed because of enormous capacity shortfall; much greater job growth under SOC alternative. Financial Claims Untrue. Daley-Ryan O’Hare plan says there is plenty of federal and airlines money to expand O’Hare Daley-Ryan O’Hare plan will bankrupt federal airport aid trust fund and United and American cannot afford billions and pay $15 billion to $20 billion cost. in bonds. Hiding the Data and Information. Daley-Ryan O’Hare plan claims based on slick Power Point Slides—no backup infor- Daley and Ryan O’Hare plan stonewall on documents and data backing up their claims—refuse to produce docu- mation provided. ments in Freedom of Information requests. Monopoly Overcharge Problem. Daley-Ryan O’Hare plan makes no mention of monopoly overcharge problem at Daley-Ryan O’Hare plan will expand and strengthen the monopoly hold United and American have on Chicago mar- O’Hare—costing Chicago based travelers hundreds of millions of dollars per year. As Governor-Elect George Ryan ket—costing Chicago business travelers hundreds of millions annually in overcharges. said, monopoly overcharges at O’Hare gouged travelers over $600 million per year. Where is the Western Ring Road? Daley-Ryan O’Hare plan say western ring road is needed for O’Hare expansion; yet Western Ring Road route pushed west by Daley-Ryan O’Hare plan into valuable and important industrial and resi- refuse to disclose location, cost, and impact on local jobs, industry, housing. dential areas of Elk Grove Village and Bensenville—leading to huge losses in jobs, tax revenues, economic devel- opment and residential quality of life. Where are all the Terminals? Daley and Ryan say they have identified all the terminals needed for the Daley-Ryan Daley now says all but one of the new terminals shown on the Daley-Ryan O’Hare plan (new Terminals 4 and 6) O’Hare plan. 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-Ryan O’Hare plan says noise will be less at 1,600,000 operations than at There will be significantly more noise at 1,600,000 operations than at 900,000 operations. 900,000 operations. Toxic Air Pollution. Daley-Ryan O’Hare plan makes no mention of toxic air pollution yet Ryan as Governor said O’Hare There will be significantly more toxic air pollution at 1,600,000 operations than at 900,000 operations. should not be expanded because of toxic air pollution problem.

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00060 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5151 THE DALEY-RYAN PLAN’S ALLEGED BENEFITS AND THE REALITY—Continued

Daley-Ryan O’Hare Plan Claims Reality

Benefit-Cost Analysis. Daley-Ryan O’Hare plan says it meets federal benefit-cost analysis requirements—including re- Reality is that benefits of Daley-Ryan O’Hare plan may not exceed the huge costs. It is also clear that placing the quirement that federal government chose the alternative that produces greatest net benefits. new capacity at the new South Suburban Airport rather than an expanded O’Hare produces far grater economic benefits at far less cost than the Daley-Ryan O’Hare plan. Increased Safety Hazards. Daley and Ryan say their plan is safe ...... Daley-Ryan O’Hare plan creates major safety hazards, including: increase in traffic incursions (collision risk), de- struction 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 Ryan say that their plan complies with state law and that they are seeking Daley and Ryan both know that they (not some future governor) have both violated state law by failing to meet the federal preemption of state law only to prevent upsetting Daley-Ryan deal by a future governor. requirements of the Illinois Aeronautics Act; purpose of bill is to immunize this illegality. $15 Billion into the O’Hare Money Pit: Problems of Corruption in Management of O’Hare. Daley and Ryan make no Putting $15 or more billion dollars into the corrupt contract management system that infects Chicago public works mention of the history of rampant corruption and kickbacks to Daley friends and cronies in O’Hare contracts or the awards—especially at O’Hare, is pouring public resources into a cesspool. The First Commandment of Chicago need for safeguards and reforms to insure the integrity of 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 South Side and South Suburbs. Daley-Ryan O’Hare plan offers little but empty Daley-Ryan O’Hare plan calls for putting virtually all of the economic growth of aviation demand at O’Hare—leaving rhetoric for Peotone and south suburban economic development. South Side and South Suburbs either empty promises, or a white elephant token airport.

GRAVE CONCERNS NEAR O’HARE who hadn’t heard about the issue until con- ROSEMARY MULLIGAN, (By Robert C. Herguth) tacted by a reporter. STATE REPRESENTATIVE 55TH DISTRICT, Des Plaines, IL, July 5, 2002. American Indian remains that were ex- ‘‘At this stage of the game, who can deter- Hon. JESSE L. JACKSON, JR., humed 50 years ago to make way for O’Hare mine who they were specifically? But we run U.S. House of Representatives, Washington, DC. Airport might have to be moved again to ac- into this sort of circumstance in many in- commodate Mayor Daley’s runway expansion stances throughout the state of Wisconsin, SUBJECT: VOTE ‘‘NO’’ ON H.R. 3479 plans. and some in Illinois, and we take care of DEAR REPRESENTATIVE JACKSON, JR.: As an That’s disturbing to some Native Ameri- them as if they were relatives,’’ she said. Illinois state legislator, I would like to use cans, who say they want their ancestors and ‘‘We’re all related, we’re all created from this opportunity to express my concern and opposition to the National Aviation Capacity relics treated with greater respect. God, so we do the right thing, we take care Act. The issue of expansion of Chicago And it’s prompting local opponents of the of anybody and try to see that they’re either O’Hare Airport is extremely important but proposed closure of two O’Hare cemeteries— not disturbed or properly taken care of.’’ one of which has Indians—to explore whether has been so misrepresented that I believe it federal laws that offer limited protection to ‘‘I guess we’d have to keep our mind broad is imperative to make a personal plea on be- Native American burial sites and artifacts as to what would be done,’’ Ritchie said. half of my local residents to each member of could help them resist the city’s efforts. ‘‘Naturally we don’t like to see graves dis- the House of Representatives. This plan in ‘‘Maybe the federal law might come to our turbed, but somebody has already disturbed the form it has been presented to you con- aid,’’ said Bob Placek, a member of them once. . . . I guess what I’d probably do tains gross misrepresentations of fact and Resthaven Cemetery’s board who estimates is talk to the tribal elders and spiritual peo- will inflict harm on the over 100,000 constitu- 40 of his relatives, all German and German- ple and other tribes who could be in the area ents I have taken an oath to protect. American, are buried there. ‘‘The dead folks and come to a conclusion of what should be You may not realize that ‘‘Chicago’’ O’Hare Airport is virtually an outcropping of out there aren’t trying to be obstructionists, done.’’ they’re trying to rest in peace. . . . I feel it’s land annexed by the City of Chicago that is Bill Daniels, one of the Potawatomi band’s a desecration to move a cemetery. It’s a dis- over 90 percent surrounded by suburban mu- spiritual leaders, said spirits may not look regard for our family’s history.’’ nicipalities. It is the only major city airport Resthaven is a resting place for European kindly on those who move remains. where the people directly impacted by air- settlers, their descendants and, possibly, ‘‘It’s not good to do that—move a cemetery port activity do not elect the mayor or city officials that make decisions about the air- Potawatomi. or just plow over it,’’ he said. It seems unlikely federal law, specifically port. Therefore, we have had little control or Daley’s plan, which still must be approved the Native American Grave Protection and recourse over what happens at the airport. by state and federal officials, also may dis- Repatriation Act, would lend much muscle This plan represents a ‘‘deal’’ between two place nearby St. Johannes Cemetery, which to those opposed to Daley’s plan, which calls men and has never been debated or voted on by the Illinois General Assembly! for knocking out three runways, building is not believed to have any Native American My family moved to Park Ridge in 1955, four new ones and adding a western entrance bodies. long before anyone had an idea of what an and terminal. John Harris, the deputy Chicago aviation overpowering presence O’Hare would become. ‘‘Primarily, the legislation applies to fed- commissioner overseeing the mayor’s $6 bil- Unfortunately, the amount of land dedicated eral lands and tribal lands,’’ said Claricy lion project, said this is the first he’s heard to the airport set its fate long before the cur- Smith, deputy regional director for the Bu- that there might be Indian remains at rent crisis. Plainly speaking, there isn’t reau of Indian Affairs. Resthaven, and city officials are trying to enough room to expand. Even if someone made the argument that verify it. For the past several years, I and other leg- O’Hare is effectively federal land because it ‘‘I have no reason to doubt them at this islators have introduced nearly a dozen uses federal money, the most Resthaven pro- measures in the Illinois General Assembly to ponents could probably hope for is a short time, but I have no independent knowledge,’’ he said. But ‘‘whether they’re Indians or not, conduct environmental studies, provide tax delay, a say in how any disinterment takes relief for soundproofing, defend suburban we would exercise an extreme level of sensi- place and, if they are Indian, the opportunity neighborhoods from unfair ‘‘land grabs,’’ re- tivity in the interest of their survivors.’’ to claim the bodies of Native Americans. quire state legislative approval of any air- ‘‘They’ve got a hard road,’’ Smith said of Resthaven, which is loosely affiliated with port expansion and to generally protect the those who might try to halt a Resthaven clo- the United Methodist Church, has about 200 people we represent whose residences abut sure on the basis of Indian remains. graves, some of which date to the 19th cen- airport property. Because of the political When O’Hare was being built five decades tury. It’s located on about 2 acres on the make-up of our body and the great influence back, an old Indian burial ground that had west side of O’Hare, in Addison Township of Chicago’s mayor, we have been unsuccess- become a cemetery for the area’s white set- just south of the larger St. Johannes. ful. Our efforts and the health and safety of tlers was bulldozed. Some bodies were moved our constituents are ignored because of poli- Self-described ‘‘advocate for the dead’’ to a west suburban cemetery and some, in- tics. cluding an unknown number of Indians, were Helen Sclair has heard there might be Indi- Please, before you vote on HR 3479, con- believed to be transferred to Resthaven, ac- ans buried at Resthaven, but she suspects sider the following facts: cording to published accounts and those fa- not all Native American remains were re- 1. If the people who surround this airport miliar with local history. trieved when Wilmer’s Old Settlers Cemetery could vote for the mayor of the City of Chi- ‘‘Ma used to talk about Indians being bur- was closed in the early 1950s to make room cago, an agreement to expand O’Hare could ied at Resthaven,’’ said the 44-year-old for O’Hare access roads. not have been made. Whoever is mayor Placek, who believes the Indians share a She said the Chicago region, which used to would have to take into consideration his mass grave. His mother, who died in 1996, be home to Potawatomi, Chippewa and other immediate constituency. also is buried at Resthaven. ‘‘I used to hear Indians, doesn’t have enough cemetery 2. Thorough environmental studies are as a little kid Potawatomi’’ were there. space, and the dead should be treated with being blocked. There are many documented Regardless of the tribe to which the dead more respect. health concerns related to current pollution belonged, the Forest County Potawatomi levels. 800,000 additional flights will nearly Community of Wisconsin, one of several Pot- ‘‘We don’t have much of a positive attitude double the environmental hazard. awatomi bands relatively close to Chicago, toward cemeteries in Chicago,’’ Sclair said. 3. The State of Illinois’ rights are being plans to get involved. ‘‘Do you know why? Because the dead don’t trampled. The House of Representatives vote ‘‘It’s concerning,’’ said Clarice Ritchie, a pay taxes or vote. . . . Well, technically they is setting a precedent that may impact your researcher for the community of about 1,000 don’t vote.’’ home state at some later date.

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00061 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 H5152 CONGRESSIONAL RECORD — HOUSE July 23, 2002 4. The safety of this plan has been ques- potential for runway incursions; in fact the federal government (the FAA and the con- tioned, particularly with its inadequate FAA FAA publishes a pamphlet for airport design- trollers) will be blamed for safety and delay Safety Zones. The lack of land does not ers and planners that urge them to avoid problems. allow for significant changes. It jeopardizes parallel runway layouts that force taxiing Sincerely, surrounding schools, homes and businesses. aircraft to cross active runways. Los Angeles CRAIG BURZYCH, 5. No matter what configuration or expan- International airport has lead the nation in Facility Representative, NATCA-O’Hare sion moves forward, O’Hare’s Midwest loca- runway incursions for several years. A large Tower. tion means it will always be impacted by part of that incursion problem is the parallel weather from many directions. runway layout; aircraft must taxi across 6. Proponents claim a 79 percent decline in runways to get to and from the terminals. HOUSE OF REPRESENTATIVES, delays with reconfiguration of runways. 3. The major difference in Governor Ryan’s Washington, DC, January 31, 2001. However, when the increase of 800,000 flights counter proposal is the elimination of the Re Key Points Why The Chicago Region is factored in, delays will increase to above southern most runway. If this runway were Needs A New Airport—And Why New their current levels. eliminated, the capacity of the new airport O’Hare Runways Are Contrary To The Notwithstanding the economic benefits would be less than we have now during cer- Region and Nation’s Best Interests. proponents subscribe to this project, the re- tain conditions (estimated at about 40% of Hon. ANDREW H. CARD, sponsibility of elected officials must be first the time). If you look at Mayor Daley’s plan, Chief of Staff to the President, to the health, welfare and public safety of it calls for six parallel east-west runways The White House, Washington, DC. the people we represent. and two parallel northeast-southwest run- Lastly, there exists a glaring discrepancy ways. The northeast-southwest parallels are DEAR ANDY: A matter of great importance between the legislation before you and what left over from the current O’Hare layout. to us is the need for safe airport capacity ex- has been told to Illinoisans. A simpler an- These two runways simply won’t be usable in pansion in the metro Chicago region. At swer to all of the O’Hare congestion prob- day-to-day operations because of the loca- your earliest convenience, we would like to lems exists in the development of a third re- tion of them (they are wedged in between, or schedule a meeting with you and Secretary gional airport. The legislation has down- pointed at the other parallels). We would not Mineta to discuss the situation. Enclosed is graded the priority of this solution and will use these runways except when the wind was a detailed memorandum summarizing our further delay any true relief for our nation’s very strong (35 knots or above) which we es- views. We are convinced that we must build transportation woes. This fact is omitted timate would be less than 1% of the time. a new regional airport now and, for the same That leaves the six east/west parallels for from news reports and official proponent reasons, we believe that construction of one propaganda. use in normal day-to-day operations. This is With all due respect, I ask that you vote the same number of runways available and or more new runways at O’Hare would be ‘‘no’’ on HR 3479. Let this remain a state’s used at O’Hare today. If you remove the harmful to the public health, economy and rights issue. Please feel free to contact me southern runway (Governor Ryan’s counter environment of the region. anytime if you have any questions at (847) proposal), you are leaving us five runways As set forth in that memorandum: 297–6533. Thank you for your time. which is one less than we have now. That Most responsible observers agree that the Respectfully, means less capacity than today’s O’Hare dur- Chicago region needs major new runway ca- ROSEMARY MULLIGAN, ing certain weather conditions. With good Illinois State Representative, 55th District. weather, you may get about the same capac- pacity now. ity we have now. If this is the case, then why The question is where to build that new NATIONAL AIR TRAFFIC build it? runway capacity—1) at a new regional air- 4. The Daley-Ryan plans call for the re- CONTROLLERS ASSOCIATION, port, 2) at O’Hare, 3) at Midway, or 4) a com- moval of the NW/SE parallels (Runways 32L CHICAGO O’HARE TOWER, bination of all of the above. An assessment and 32R). This is a concern because during Chicago, IL, November 30, 2001. of these alternatives reaches the following Hon. PETER FITZGERALD, the winter it is common to have strong conclusions: U.S. Senate, Washington, DC. winds out of the northwest with snow, cold SENATOR FITZGERALD, As requested from temperatures and icy conditions. During 1. The new runways can be built faster at your staff, I have summarized the most obvi- these times, it is critical to have runways a new airport as opposed to O’Hare or Mid- ous concerns that air traffic controllers at that point as close as possible into the wind. way. O’Hare have with the new runway plans Headwinds mean slower landing speeds for 2. More new runway capacity can be built being considered by Mayor Daley and Gov- aircraft, and they allow for the airplane to ernor Ryan. They are listed below along with decelerate quicker after landing which is im- at a new site than at O’Hare or Midway. some other comments. portant when landing on an icy runway. 3. The new runways can be built at far less 1. The Daley and Ryan plans both have a Landing into headwinds makes it much easi- cost at a new airport than at O’Hare or Mid- set of east/west parallel runways directly er for the pilot to control the aircraft as way. north of the terminal and in close proximity well. Without these runways, pilots would to one another. Because of their proximity have to land on icy conditions during strong 4. Construction of the new capacity at a to each other (1200′) they cannot be used si- cross-wind conditions. This is a possible safe- new airport will have far less impact on the multaneously for arrivals. They can only be ty issue. environment and public health than would used simultaneously if one is used for depar- These are the four major concerns we have expansion of either Midway or O’Hare. tures and the other is used for arrivals, but with the Daley-Ryan runway plans. There 5. Construction of the new capacity at a are many more minor issues that must be only during VFR (visual flight rules), or new airport offers the best opportunity to good weather conditions. During IFR (instru- addressed. Amongst them are taxiway lay- bring major new competition into the region. ment flight rules, ceiling below 1000′ and vis- outs, clear zones (areas off the ends of each ibility less than 3 miles) these runways can- runway required to be clear of obstructions), 6. The selected alternative cannot be ex- not be used simultaneously at all. They basi- ILS critical areas (similar to clear zones, but pansion at O’Hare and construction of a new cally must be operated at one runway for for navigation purposes), airspace issues airport. New runways at O’Hare would doom safety reasons. The same is true for the set (how arrivals and departures will be funneled the economic feasibility of the new airport, of parallels directly south of the terminal; into these new runways) and all sorts of guarantee its characterization as a ‘‘white they too are only 1200′ apart. other procedural type issues. These kinds of elephant’’ and insure the expansion of the 2. Both sets of parallel runways closest to things all have to go through various parts monopoly dominance of United and Amer- the terminal (the ones referred to above) are of the FAA (flight standards, airport certifi- ican Airlines in the Chicago market. all a minimum of 10,000′ long. This creates a cation etc.) eventually. These groups should runway incursion problem, which is a very have been involved with the planning portion The memorandum contains a series of re- serious safety issue. Because of their length from day one. Air traffic controllers at the lated questions and a detailed list of sugges- and position, all aircraft that land or depart tower are well versed on what works well tions that would ensure the rapid develop- O’Hare would be required to taxi across ei- with the current airport and what does not. ment of major new runway capacity in the ther one, or in some cases two runways to We can provide the best advice on what Chicago region, open the region to major get to and from the terminal. This design needs to be accomplished to increase capac- new competition, and accomplish these ob- flaw exists in both the Daley and the Ryan ity while maintaining safety. It is truly jectives in a low-cost, environmentally plan. A runway incursion is when an aircraft amazing that these groups were not con- sound manner. accidentally crosses a runway when another sulted in the planning of a new O’Hare. The aircraft is landing or departing. They are current Daley-Ryan runway plans, if built as Again, we would appreciate the oppor- caused by either a mistake or mis-under- publicized, will do little for capacity and/or tunity to discuss these matters with you and standing by the pilot or controller. Runway will create serious safety issues. This simply Secretary Mineta at your earliest conven- incursions have skyrocketed over the past cannot happen. The fear is that the airport ience. few years and are on the NTSB’s most want- will be built, without our input, and then Very truly yours, ed list of safety issues that need to be ad- handed to us with expectations that we find HENRY HYDE, dressed. Parallel runway layouts create the a way to make it work. When it doesn’t, the JESSE JACKSON, JR.

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00062 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5153 To: White House Chief of Staff Andrew Card. vs. building the new capacity at O’Hare or guarantees that the new airport will be a From: Congressman Henry Hyde, Congress- Midway. ‘‘white elephant’’—much as the Mid-America man Jesse Jackson, Jr. 4. Construction of the new capacity at a airport near St. Louis is today because of the Re: Key Points Why Chicago Region Needs A new airport will have far less impact on the Fortress Hub practices of the major airlines New Airport—And Why New O’Hare Run- environment and public health than would and as was Dulles International as long as ways Are Contrary To The Region and expansion of either Midway or O’Hare. Mid- Washington National was allowed to grow. Nation’s Aviation Best Interests way, and later O’Hare, were sited and built With limits on the growth of National finally Date: January 31, 2001. at a time when concerns over environment recognized, Dulles is now the thriving East This memorandum summarizes our views and public health were far less than they are Coast Hub for United. in the debate over the need for airport capac- today. As a result, both existing airports RELATED QUESTIONS ity expansion in the metro Chicago region. have virtually no ‘‘environmental buffer’’ be- If the Region needs new runways, what is For the reasons set forth herein, we are con- tween the airports and the densely populated the sense of spending over several billion vinced that we must build a new regional communities surrounding these airports. In dollars—much of it public money—to build airport now and, for the same reasons, be- contrast, the site of the new South Suburban the World Gateway Program at O’Hare if we lieve that construction of one or more new Airport has, by design, a large environ- decide that new runway capacity should be runways at O’Hare would be harmful to the mental buffer which will ameliorate most, if built elsewhere? If the decision is to build public health, economy and environment of not all, of the environmental harm and pub- the new runways at O’Hare, then much of the the region. lic health risk from the site. Indeed, pru- 5–6 billion dollar terminal and roadway ex- The debate can best be summarized in a dence would suggest an even larger environ- pansion proposed for O’Hare may be justi- simple question and answer format. mental buffer around the South Suburban fied. Does the Region need new runway capacity site than is now contemplated. We can create But if the decision is that the new runway now? Unlike The City of Chicago—which has the same or similar environmental buffer capacity should be built elsewhere, then the for more than a decade privately known that around O’Hare or Midway—but only at a cost proposed multi-billion dollar expansion the region needs new runway capacity while of tens of billions of dollars and enormous makes no sense. We will be spending billions publicly proclaiming that new runway capac- social and economic disruption. of dollars in taxpayer funds for a massive ity is not needed—bipartisan leaders like 5. Construction of the new capacity at a project that standing alone—without new Jesse Jackson, Jr. and myself have openly new airport offers the best opportunity for runways—will not add any new capacity to acknowledged the need for, and urged the bringing major new competition into the re- our region. construction of, new runway capacity in the gion. When comparing costs and benefits of The airlines know this fact and that is why region. alternatives, the Bush Administration must they—and their surrogates at the Civic Com- The need for new runway capacity is not a address the existing problem of monopoly (or mittee and the Chicagoland Chamber—are distant phenomenon; we should have had duopoly) fares at ‘‘Fortress O’Hare’’ and the pushing for new runways. new runway capacity built several years ago. economic penalty such high fares are inflict- If the Region needs new runways and we While 20 year growth projections of air trav- ing on the economic and business commu- wish to explore the alternative of putting el demand show that the harm caused by this nity in our region. Does the lack of signifi- the new runways in at O’Hare, what is the failure to build capacity will only get worse, cant competition allow American and United full cost of expanding O’Hare as opposed to the available information suggests that the to charge our region’s business travelers constructing a new airport? If others wish to region has already suffered serious economic higher fares than they could if there was sig- explore the alternative of an expanded harm for several years because of our past nificant additional competition in the re- O’Hare as the place to build the new runways failure to build the new runway capacity. gion? What is the economic cost to the re- capacity for the region, let’s have an honest If the answer to the runway question is gion—in both higher fares and lost business exploration and discussion of the full costs of yes—and we believe it is—the next question opportunities—of the existing ‘‘Fortress expanding O’Hare with new runways and is where to build the new runway capacity? O’Hare’’ business fare dominance of United compare it to the cost of building the new Though the issue has been discussed, the and American? airport. Chicago and the airlines already media, Chicago and the airlines have failed The State of Illinois has stated that exist- know what the components of an expanded to openly discuss the alternatives as to ing ‘‘Fortress O’Hare’’ business fare domi- O’Hare would be. where to build the new runway capacity— nance of United and American costs the re- These components are laid out in Chicago’s and especially, the issues, facts and impacts gion many hundreds of millions of dollars ‘‘Integrated Airport Plan and include a new to the pros and cons of each alternative. per year. Bringing in one or more significant ‘‘quad runway’’ system for O’Hare and addi- The alternatives for new runway capacity competitors to the region would bring enor- tional ground access through ‘‘western ac- in the region are straightforward: (1) build mous economic benefits in increased com- cess’’. new runways at a new airport, (2) build a new petition and reduced fares. Based on information available, we believe runways at O’Hare, (3) build new runways at And the only alternative that has the room that the cost of the O’Hare expansion would Midway, or (4) a combination of all of the to bring in significant new competition is exceed ten billion dollars. These costs should above. Given these alternatives, the fol- the new airport. Certainly the design of Chi- be compared with the costs of a new airport. lowing facts are clear: cago’s proposed World Gateway program—de- Are the delay and congestion problems ex- 1. The new runways can be built faster at signed in concert with United and American perienced at O’Hare self-inflicted? Sadly, a new airport as opposed to O’Hare or Mid- to preserve and expand their dominance at when Chicago and the major O’Hare airlines way. Simply from the standpoint of physical O’Hare—does not offer opportunities for advocated lifting of the ‘‘slot’’ restrictions construction (as well as paper and regulatory major competitors to come in and compete at O’Hare and other major ‘‘slot’’ controlled planning) the new runways can be built fast- head-to-head with United and American. airports, the Clinton Administration and er at a ‘‘greenfield’’ site than they can at ei- 6. The selected alternative cannot be ex- others ignored the warnings of Congressman ther O’Hare or Midway. pansion at O’Hare and construction of a new Jackson, and myself that the airport could 2. More new runway capacity can be built airport. The dominant O’Hare airlines are not accommodate the additional flights at a new site than at O’Hare or Midway. pushing their suggestion: add another run- without a chaotic increase in delays and con- Given the space limitations of O’Hare and way at O’Hare and allow a ‘‘point-to-point’’ gestion. Indeed, the chaos we predicted has Midway, it is obvious that more new run- small airport to be built at the South Subur- come true and we now have a ‘‘Camp ways (and therefore more new runway capac- ban Site. O’Hare’’ where air traffic is managed by can- ity) can be built at a new larger greenfield That is not an acceptable alternative for cellation rather than by adequate service. site than at either O’Hare and Midway. We several reasons: Like Cassandra, our prophecy was ignored. acknowledge that additional space can be ac- First, it presumes massive growth at The Clinton Administration endorsed lifting quired at Midway or O’Hare by destroying O’Hare, as it is based on the assumption that the slot controls and chaos ensued. densely populated surrounding residential all transfer traffic growth—along with the But just because our warnings were ig- communities—but only at tremendous eco- origin-destination traffic to sustain the nored doesn’t mean that practical solutions nomic and environmental cost. transfer growth—stays at O’Hare. If that as- should continue to be ignored. The delays 3. The new runways can be built at far less sumption is accepted, the airlines already and congestion were predictable and cer- cost at a new airport than at O’Hare or Mid- know that demand growth for the traffic as- tain—predicted based on delay/capacity anal- way. Again, it is obvious that the new run- sumed to stay at O’Hare will necessitate not ysis conducted by the FAA. Just as certain ways—and their associated capacity—can be one, but two or more additional runways. are the short term remedies. built at far less cost at a ‘‘greenfield’’ site This increase in traffic at O’Hare will have Just as the congestion was brought on by than they can at either O’Hare or Midway. serious environmental and public health im- overstuffing O’Hare with more aircraft oper- Given the enormous public taxpayer re- pacts on surrounding communities. ations than it can handle, the congestion and sources that must be used for any of the al- Second, this alternative destroys the eco- delay can immediately be reduced to accept- ternatives—and the relative scarcity of pub- nomic justification for the new airport. With able levels by reducing the scheduled air lic funds—the Bush Administration should massive new capacity at O’Hare, there would traffic to the level that can be easily accom- compare the overall costs of building the be no economic need for the new airport. modated by O’Hare without the risk of unac- new runway capacity (and associated ter- Third, assuming the new airport is built ceptable delays. The delay chaos was self-in- minal and access capacity) at a new airport anyway, as a ‘‘compromise’’, this alternative flicted by ignoring the flashing warnings put

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00063 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 H5154 CONGRESSIONAL RECORD — HOUSE July 23, 2002 out by the FAA and other experts. The solu- communities that O’Hare uses as its ‘‘envi- plane to Washington. Why? Because the tion can be easily administered by the FAA ronmental buffer’’—namely Park Ridge and Springfield traveler has the choice of recognizing—as it has at LaGuardia—that Des Plaines. hubbing either through O’Hare or St. Louis limits must be placed on uncontrolled airline Is the Park Ridge study valid? Park Ridge while the Chicago based business traveler is desire to overscheduled flights. has challenged Chicago, the airlines, and fed- locked into Chicago. Should the short-term ‘‘fix’’ to the delays eral and state agencies to come forward with Where are the antitrust enforcers to break and congestion include ‘‘capacity enhance- any alternative findings as to the toxic air up these geographic cartels? Equally impor- ment’’ through air traffic control devices? pollution impact of O’Hare’s emissions on tant, in addition to antitrust enforcement Absent new runways, the FAA has encour- downwind residential communities. And that powers, the federal government has enor- aged and permitted a variety of operational does not mean simply listing what comes out mous leverage to break up the cartels devices designed to allow increased levels of of O’Hare. The downwind communities are through the funding approval process of the departures and arrivals in a set period of entitled to know how much toxic pollution Airport Improvement Program (AIP) and time. These procedures—known as ‘‘incre- comes out of O’Hare, where the toxic pollu- Passenger Facility Charge (PFC) programs. mental capacity enhancement’’—focus on tion from O’Hare goes, what are the con- Yet billions of federal taxpayer funds go to putting moving aircraft closer together in centrations of O’Hare toxic pollution when it United and American without so much as a time and space—to squeeze more operations reaches downwind residential communities, raised eyebrow. into a finite amount of runways. Typically, and what are the health risks posed by those What about Noise? Shouldn’t we be happy this squeezing is done in low visibility, bad O’Hare pollutants at the concentrations in to exchange some soundproofing for new run- weather conditions because these are the those downwind communities. ways at O’Hare? The City of Chicago has a conditions where FAA wants to increase ca- Should not something be done to control residential soundproofing program which pacity. and reduce the already unacceptable levels was created on the advice of its public rela- While the air traffic controllers remain of toxic air pollution coming into downwind tions consultants to create a spirit of ‘‘com- mute on the safety concerns raised by these residential communities from O’Hare’s cur- promise’’ that would lead to acceptance of procedures, the pilots sure have not: rent operations? new runways at O’Hare. ‘‘We have seen the volume of traffic at Should not the relative toxic pollution But here are some facts that are little pub- O’Hare pick up and exceed anyone’s expecta- risks to surrounding residential commu- licized: tions, so much so, that on occasion mid-airs nities created by the alternatives of a new 1. Most of our residents feel that sound- were only seconds apart. O’Hare is at max- airport, expanding O’Hare, or expanding Mid- proofing—while improving their interior imum capacity, if not over capacity. It is my way be added to the analysis and comparison quality of life—essentially assumes that we opinion that it is only a matter of time until of alternatives? will give up living-out-of-doors or with our two airliners collide making disastrous head- What about the monopoly problem at For- windows open in nice weather. 2. Whereas many major airport cities with lines.’’ Captain John Teerling, Senior AA tress O’Hare and what should be done about residential soundproofing programs are Airline Captain with 31 years experience fly- it? We have already alluded to the factor of soundproofing all homes experiencing 65 ing out of O’Hare January 1999 letter to Gov- high monopoly fares as a consideration in DNL (decibels day-night 24-hr. average) or ernor Ryan (emphasis added) choosing alternatives for the new runway ca- greater, Chicago and the airlines are only Paul McCarthy, ALPA’s [Airline Pilots As- pacity. But the monopoly problem of For- committing funds to the 70 DNL level. Re- sociation] executive air safety chairman, tress O’Hare will be relevant even if no new sult: Chicago is only soundproofing less than condemned the incremental capacity en- airport is built. The entire design of the pro- 10% of the homes that Chicago itself ac- hancements as threats to safety. Each one posed World Gateway Program is premised knowledges to be severely impacted. puts a small additional burden on pilots and on a terminal concept that solidifies and ex- 3. Chicago came into our communities ask- controllers, he said. Taken together, they re- pands the current market dominance of ing to put in noise monitors to collect ‘‘real duce safety margins, particularly at multiple United and American at O’Hare and in the world’’ data as to the levels of noise. Yet, de- runway airports, to the point that they in- Chicago air travel market. spite promises to share the data, Chicago re- vite a midair collision, a runway incursion or a What can the Bush Administration do if in- fuses to share the data with our commu- controlled flight into terrain. Aviation Week, deed there is a monopoly air fare problem at nities. September 18, 2000 at p. 51 (emphasis added) O’Hare or monopoly dominance is costing 4. Instead of an atmosphere of trust, these It is clear that FAA’s constant attempts to Chicago area business travelers hundreds of tactics by Chicago have created additional squeeze more and more capacity out of the millions of dollars per year? animosity as neighbors on one side of an existing overloaded runways—through such When these questions were raised in the alley or street get soundproofing while their ‘‘enhancement’’ procedures as the recently Suburban O’Hare Commission report, If you neighbors across that alley or street get no announced ‘‘Compressed Arrival Procedures’’ Build It We Won’t Come: The Collective Re- soundproofing. Indeed, Chicago’s residential and other ATC changes—is incrementally re- fusal Of The Major Airlines To Compete In soundproofing program—because it is so lim- ducing the safety margin so cherished by the The Chicago Air Travel Market, Chicago and ited in scope and ignores thousands of ad- pilots and the passengers who have entrusted the airlines responded with smoke and mir- versely impacted homes—has caused even their safety to them. rors. First they produced glossy charts show- more animosity in our communities. The answer to growth is new runways at a ing that more than 70 airlines serve O’Hare. In short, residential soundproofing is not new airport—not jamming more aircraft What they neglected to show was that the panacea that Chicago and many in the closer and closer together at O’Hare. The an- United and American control over 80% of downtown media perceive it to be. Moreover, swer to delays and congestion with existing those flights with the remaining 60 plus air- it does nothing to address the toxic air pollu- overscheduled levels of traffic is to reduce lines operating only a small percentage. tion and other safety related concerns of our traffic levels to the capacity of the runways Similarly, the airlines and Chicago talked residents. without the need to jam aircraft closer and about the competitive low fares charged to Can we have more than one ‘‘hub’’ airport closer together. passengers. What they emphasized, however, operating in the same city? Faced with the Does the current level of operations at were low fares for reservations far in ad- potential inevitability of a new airport, the O’Hare (and Midway) generate levels of toxic vance. The major business travel organiza- airlines for the last two years have been ar- air pollutants that expose downwind residen- tions representing business travel managers guing for an expansion of O’Hare (instead of tial communities to levels of these pollut- report that business travelers predominantly a major new airport) with the argument that ants in their communities at levels above use unrestricted coach fares since they have a metropolitan area cannot have more than USEPA cancer risk guidelines? Though our to respond on short notice to business needs. one hub airport. Based on that premise, residents have complained for years about An examination of fares for unrestricted United and American say that the sole hub toxic air pollution from O’Hare, none of the business travel from Chicago to major busi- airport in metro Chicago should be O’Hare. state and federal agencies would pay atten- ness markets shows that these routes are That simply is not correct: tion. Recently however, Park Ridge funded a dominated by United and American and that 1. There are several domestic and inter- study by two nationally known expert firms they charge extremely high ‘‘lock-step’’ national cities with more than one hubbing in the field of air pollution and public health fares to business travelers to these business airport. Competing airlines create hubbing to conduct a preliminary stud of the toxic markets. operations wherever airport space is avail- air pollution risk posed by O’Hare. That Finally, the airlines and Chicago argued able. Thus, there are multiple hubbing air- study, Preliminary Study and Analysis of that O’Hare is ‘‘competitive’’ with fares ports in metro New York (JFK and Newark), Toxic Air Pollution Emissions From O’Hare charged to business travelers in other For- Washington, D.C., London, and Paris. International Airport and the Resultant tress Hub Markets. That statement ignores 2. The Lake Calumet Airport proposed by Health Risks Caused By Those Emissions in the fact that all the major airlines are Mayor Daley would have been a second hub Surrounding Residential Communities (Au- gouging captive business travelers in all airport. gust 2000), found that current operations at their own Fortress Hub markets. Indeed, a 3. There is simply no reason—given the size O’Hare—based on emission data supplied by repeated anecdote is the fact that a pas- of the business and other travel origin-des- Chicago—created levels of toxic air pollution senger from a ‘‘spoke’’ city—e.g., Spring- tination market in metro Chicago—that a in excess of federal cancer risk guidelines in field, Illinois—pays a lower fare for a trip to new hub competitor could not establish a 98 downwind communities. The highest lev- O’Hare and then to Washington D.C. than a major presence at a new south suburban air- els of risk were found in those residential Chicago based traveler who gets on the same port.

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00064 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5155 How do we fund new airport construction? nomenon—both at O’Hare and at other For- [From the Chicago Tribune, March 20, 2001] The answer is simply and the same answer tress Hubs around the nation. This can be DALEY AND THE STENCH AT O’HARE Mayor Daley had for the proposed Calumet done with either aggressive antitrust en- Maybe after 12 years in office the mayor of Airport. Daley proposed using a mix of PFC forcement or with proper oversight of the Chicago thinks he owns the chair. and AIP funds to induce carriers to use the disbursal of massive federal subsidies. And why not. Richard M. Daley’s decision 8. The entire World Gateway Program new airport. Indeed, the entire justification to let his pals run wild, and put the best in- should be exmained in light of the questions for his urging the passage of PFC legislation terests of citizens a distant second makes raised here and should be modified or aban- was to collect PFCs at O’Hare and use them sense. doned depending on the answers provided to for the new airport. After all those years of worrying about ap- But United and American claim that the these questions. pearance, who wouldn’t let his buddies bend PFC revenues are ‘‘their’’ money. On the We would appreciate the opportunity to a few rules? Who wouldn’t get tired of star- contrary, the PFC funds are federal taxpayer discuss these matters with you and Sec- ing cameras and pretending that every deci- funds no different in their nature as tax- retary Mintea at your convenience. sion is being made for the good of Chicago? payer dollars than the similar ‘‘AIP’’ tax And who wouldn’t be fed up with annoying charged to air travelers. These funds don’t HOUSE OF REPRESENTATIVES, questions from the newspaper gnats about belong to the airlines. They are federal funds Washington, DC. ethics? collected and disbursed through a joint pro- FIVE REASONS TO OPPOSE THE NATIONAL Truth is, the growing trail of pols and pals gram administered by the FAA and the air- AVIATION CAPACITY EXPANSION ACT (HR 3479) who use their connections with Daley to get port operator. DEAR COLLEAGUE: This legislation to ex- rich—and to trash the mayor’s reputation in Nor are these federal taxpayer funds ‘‘Chi- pand O’Hare International Airport is fatally cago’s’’ money. Chicago is simply a tax col- the process—is a marvel. So is the chutzpah flawed because it will: that leads the boodlers to think they won’t lection agent for the federal government. 1. SET A TERRIBLE PRECEDENT: This But how do we get the funds from O’Hare be found out. bill will allow the federal government to pre- Unless, with their millions already stuffed to the new airport? We do it the same way empt state law requiring approval of airport Mayor Daley is transferring funds from in their pockets and Daley as their see-no- construction and expansion—approval that evil patsy, the boodlers just don’t care any O’Hare to Gary and the same way he pro- requires the blessing of the state legislature. posed getting federal funds collected at more. Will your state legislature be next to lose its The latest to be outed is Jeremiah Joyce, O’Hare to the Lake Calumet project: a re- power to decide local airport matters? gional airport authority. an old Daley buddy who reportedly has been The bill also will lead to a rash of demands exploiting his connections to line his pock- SUGGESTIONS from various localities for priority standing ets. Joyce is a player—a richly paid one at We have respectfully posed some questions for airport funding, bypassing reasonable ad- that—in an increasingly—seamy drama: and posited some answers for the President’s ministrative planning and environmental re- ‘‘Why the Mayor Doesn’t Want a Third Air- and your consideration. We believe that a view processes. port.’’ 2. THREATEN SAFETY AND THE ENVI- thorough and candid examination and dis- Unless, of course, it’s a city-owned third RONMENT: This legislation attempts to su- cussion of these questions leads to only one airport, not some paved-over cornfield out- perimpose what amounts to an airport the conclusion: we should build a new airport side Chicago. If Daley’s cronies had three size of Dulles International on a land-locked and we should not expand O’Hare. airports to play with, they could do an even airport the size of Reagan National—an ab- But more than raising questions, we also better job of cashing out their friendships surd idea on its face. Former U.S. Depart- have several concrete suggestions for ad- with the mayor. Sure, they look bad, hiring ment of Transportation Inspector General dressing the region’s air transportation on as fixers to help companies land contracts Mary Schiavo has called this proposal ‘‘a needs: from Daley’s puppets at the city Aviation 1. Let’s stop the paper shuffling and build tragedy waiting to happen.’’ Department. But so what? There’s big money the new airport. The program we outline is Putting 1.6 million planes a year into the to be made. And if Daley doesn’t care about this letter is virtually identical to the pro- O’Hare airspace already overcrowded with his good name, why should they? posal drafted by Mayor Daley for construc- 900,000 flights doesn’t make sense. It in- Joyce’s rental of his name and reputation tion of the Lake Calumet Airport. We believe creases the risk of a serious accident and it reported Monday by the Tribune’s Laurie that a cooperative fast-track planning and jeopardizes surrounding schools, homes and Cohen and Andrew Martin. In 1992, McDon- construction program for a new airport could businesses. ald’s Corp. bid on a contract to handle con- see the new airport open for service in 3–5 A third regional airport that can be built cessions at O’Hare Airport’s new inter- years. in one-third of the time and at one-third of 2. The money, resources and legal author- the cost of expanding O’Hare. national terminal. McDonald’s didn’t get the ity to build the new airport can be assembled O’Hare is already the largest polluter in deal. But a few months later McDonald’s and by passage of a regional airport authority the Chicago region. With expansion, noise Duty Free International hired Joyce. bill similar to the regional airport authority and air pollution will increase exponentially. Voila!—the O’Hare contract was up for grabs bill drafted in 1992 by Mayor Daley for the 3. UPROOT THOUSANDS OF FAMILIES: again, and the companies landed a deal Lake Calumet project. So the Illinois Gen- This legislation will destroy the single larg- worth millions. The arrangement appears to eral Assembly is a necessary partner in any est concentration of federally assisted af- have earned Joyce $1.8 million last year effort. But equally important is the domi- fordable housing in one of the nation’s most alone. nant role of the federal Administration in affluent counties. These are the homes that But not to worry. Everyone denies every- controlling the use of AIP and PFC funds low-income people and other minorities, par- thing. Joyce denies using his contacts at and in assertive enforcement of federal anti- ticularly Hispanics, depend on. City Hall to help the companies win their ex- trust laws. Let’s put together a federal-state Up to 1,500 or more homes will be de- clusive O’Hare business just one month after partnership to get the job done. stroyed. These homes will be condemned or they retained him. What role did his clout 3. Give the O’Hare suburbs guaranteed pro- taken by eminent domain, leaving those play? ‘‘I would say none,’’ Joyce says. ‘‘I tection against further expansion of O’Hare. homeowners few options to find affordable would say zero.’’ Such guarantees are needed not only for our housing elsewhere. David Mosena, then the city’s aviation protection but for the viability of the new 4. THREATEN THOUSANDS OF JOBS; commissioner, agrees. ‘‘The significance of regional airport. This legislation will destroy as much as one- Jerry Joyce in the deal was nil,’’ Mosena 4. Provide soundproofing for all of the third of the nation’s largest contiguous in- says. noise impacted residences around O’Hare and dustrial park, threatening tens of thousands The Daley administration probably wants Midway. The new airport addresses future of jobs. How many jobs will be created by the to deny the obvious. But the mayor’s people needs; it does not correct existing problems airport expansion? That remains a great say they just can’t find the public documents caused by existing levels of traffic. mystery. that would explain how the O’Hare pact 5. Initiate a regulatory program to control 5. COST TOO MUCH: This legislation will came together. Don’t you hate it when and reduce air toxics emissions from O’Hare. require the expenditure of $15 billion or more things get lost? 6. Fix the short-term delay and congestion once the entire infrastructure, relocation, This fiction that nobody knew nothin’ at O’Hare by returning to a recognition of soundproofing and other costs are figured in. about deals at O’Hare is familiar. Power pal the existing capacity limits of the airport. This is much more costly than the $6.6 bil- Oscar D’Angelo gets at least $480,000 for lob- The delay and congestion now experienced at lion that supporters keep touting. bying on behalf of a contractor, even though O’Hare is a self-inflicted wound brought Commits Chicago, Illinois and federal tax- he doesn’t register as a lobbyist. D’Angelo about by airline attempts to stuff too many payers to a plan whose costs have not been lobbies the city on behalf of a company that planes into that airport. The delays and con- adequately detailed. We have requested doc- uses a subcontractor run by two women with gestion will be dramatically reduced imme- umentation of the costs, but have been re- ties to Maggie Daley, the mayor’s wife. Most diately by reducing scheduled traffic to a buked. That is why a Freedom of Informa- recently, Victor Reyes, the mayor’s former level consistent with the exiting capacity of tion lawsuit is pending in Illinois court. political henchman, winds up in the middle the airport. of a billion-dollar O’Hare construction deal 7. Demand a break-up and reform of the Mr. Speaker, I reserve the balance of just weeks after leaving Daley’s payroll. At Fortress Hub anti-competitive phe- my time. every turn, nobody knew nothin’.

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00065 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.006 pfrm09 PsN: H23PT1 H5156 CONGRESSIONAL RECORD — HOUSE July 23, 2002 Mr. Mayor, spare all of us the calls for a runways and airports, the stalemate in Illi- 1984, was hired to supervise truck drivers at tougher ethics ordinance and the angry glare nois is especially vexing. the airport one year after Daley was elected when you deny that you knew about the U.S. Sen. John McCain (R. Ariz.) in Sep- in 1989. He was moved to another city depart- Joyce deal. Hey, maybe you didn’t know tember blamed local political squabbling for ment five years later amid allegations that about the Joyce deal. sacrificing the interests of the entire Chi- he had sold jobs and pressured workers to What you did know, and have known for cago region and the nation. buy tickets to campaign events for Daley years, is that your pals are oinking at the ‘‘I say pox on all of them,’’ McCain said re- and others. Longo has denied the charges. O’Hare through. And they can oink all they cently in an interview. ‘‘Chicago is one of But the money paid for salaries is a frac- want, because nobody wills top them. This the most gridlocked places in America and a tion of the dollars paid to contractors for ev- game has only two rules; Don’t get caught. critical transportation hub. We can’t get erything from engineering and architecture And don’t say ‘‘Peotone.’’ O’Hare expanded, and we can’t build another to snow removal: For example, the Aviation The rest of us now see O’Hare for the eco- airport. And those are the only two options.’’ Department has contracts with 29 architec- nomic engine it really is. Not just for shrewd Political dealmaking—the airport that clout tural and engineering firms totaling $356 contractors and patronage hacks, but for the built million, $36 million worth of contracts for select few who call the mayor of Chicago by O’Hare has been inexorably, linked with snowmelting and removal, and $660,000 for his first name. politics and the Daleys since the day the air- seasonal decorations. Landrum & Brown, the city’s long-time port—formerly a military airfield and or- [From the Chicago Tribune, Nov. 21, 2000] aviation planning consultant, provides a case chard—opened in 1955. Its transformation study in how politics and contracts mingle POLITICS SNARL O’HARE into an aviation crossroads provides a lesson at O’Hare. STALEMATE BLOCKS NEW AIRPORT, MORE in Machiavellian politics and lucrative The Cincinnati-based firm, which is now RUNWAYS dealmaking. paid $12 million a year and has played a cru- (By Andrew Martin and Laurie Cohen) The late Mayor Richard J. Daley was in- cial role in the city’s efforts to block strumental in breaking a long impasse be- The parochial and petty politics that have Peotone, operated on the same no-bid city tween the city and the airlines, which had turned O’Hare International Airport into a contract from 1968 to 1995, when it got an- been reluctant to move from Midway Air- treasure trove for concessionaires and con- other no-bid deal. port, then the nation’s busiest, and cover the tractors also are at the heart of why the Besides donating to the mayor’s campaign costs of a new airport. transportation hub is a quagmire of delays, and charities overseen by Daley’s wife, the Daley also resolved the sticky issue of how hassles and heartaches. firm hired Oscar D’Angelo as its political ad- the City of Chicago could control an airport The political self-interests that have got- viser shortly after Daley took office. It also outside its borders. The solution: The city ten in the way of expanding the world’s sec- has handled subcontracts to companies annexed 5 miles of Higgins Road, creating a ond-busiest airport—or building a new air- owned by Daley allies. Former campaign controversial ‘‘O’Hare corridor’’ that linked field—are quietly on display on the vaulted manager Carolyn Grisko helps with public the city with its new airport. corridors of the United Airlines terminal. relations, Democratic fundraiser Niranjah Buy a carton of cigarettes at the duty-free From the start, O’Hare was used by City Hall as a means to reward political allies. Shah does engineering work, and Chicago shop and some of your money finds its way Housing Authority Chairwoman Sharon Gist into the pockets of Jeremiah Joyce, who has Richard J. Daley’s administration, for in- stance, gave the right to sell flight insurance Gillian is a computer consultant. been one of Mayor Richard Daley’s key polit- United States has used a similar formula. to a company that had hired Daley’s City ical strategists. The biggest airline at O’Hare, United States Council floor leader, Thomas Keane, and it Need a book or a magazine to pass the relies on the city for long-term, exclusive handed millions of dollars in construction time? The airport’s bookseller, W.H. Smith, gate leases. work to another company that employed has paid for political advice from mayoral Besides donating hunreds of thousands of Keane. pal Oscar D’Angelo, and its partners include dollars to city-sponsored events, charities fa- Since then, as annual flights have grown to Grace Barry and Barbara Burrell, friends of vored by the Delays and political campaigns. about 900,000 and City Hall has received vast- the mayor’s wife. United has hired the mayor’s younger broth- ly more money to spend at the airport, the Satisfy a sweet tooth and you’re patron- er and his former chief of staff as lobbyists. basic formula at O’Hare hasn’t changed izing the candy shop partially owned by Rev. William Daley lobbied for United before he much. Clay Evans and Elzie Higginbottom, both in- became U.S. secretary of commerce in the O’Hare’s budget for the coming year is $511 fluential supporters of the mayor in the Afri- Clinton administration, and Gery Chico, now million, which is paid for by airline landing can-American community. chairman of the Chicago school board, lob- fees, terminal rentals, concessions charges Now, take a look at the passengers killing bies for United States at City Hall. time because of delays or sleeping on and parking revenues—though not by prop- rollaway cots because of cancellations. erty taxes. Another $506 million is set aside A long battle—the fight for a third airport They’re where they are because of politics for construction projects, paid for by bond Given the success of O’Hare—as an impor- too. issues, federal grants and a passenger ticket tant hub in the nation’s air traffic system, as The hidden motives that determine every- tax. an economic engine and as a source of pa- thing from contracts to projections for O’Hare helps Daley at election time. Air- tronage and contracts—it’s not surprising growth at O’Hare have created an airport port vendors, concessionaires and other busi- that both Daleys wanted new airports, so that works for the politicians, their friends ness tied to O’Hare—and their executives and long as they were subject to mayorial con- and the airport’s two major airlines, but not lobbyists—donated about $360,000 to Daley’s trol. for the public. campaign in an 18-month period beginning in But the push for a third airport has always Political wheeling and dealing at the air- July 1998. Daley was re-elected in February bogged down in politics, statistical sleight of ports extends to the debate over new run- 1999. hand and mixed signals from Washington, ways and a new airport, though with much And Daley’s political machine, as well his D.C. higher stakes and a wider impact on the tens loyalists and friends, benefits from the jobs In the late 1960s, the elder Daley proposed of thousands of passengers traveling through at O’Hare. Due to the length of Dailey’s ten- building a major jetport on land-fill in Lake O’Hare each day. ure, he has hired nearly 60 percent of the Michigan, an indea that never flew because Daley seems determined to protect the 1,900 employees who work for the city’s De- of cost and environmental concerns. cookie jar of jobs, concessions, contracts and partment of Aviation, which managers The idea of a third airport didn’t gather economic largesse that is O’Hare. His admin- O’Hare, Midway and Meigs Field, according steam again until the mid-1980s, when state istration, the Tribune has found, has manip- to a Tribune review of payroll records. officials were looking for sites for a third ulated statistics to downplay the need for a His administration has hired campaign airport to relieve O’Hare, on the orders of new airport near the Will County town of workers and the sons, wives, nephews and the Federal Aviation Administration. The Peotone. At the same time, Delay has bene- brothers of City Hall insiders. For instance, sites considered were in rural areas south of fitted from a friendly Clinton administra- the City employed the son of Cook County Chicago, including Peotone. tion, which has stalled the Peotone pro- Sheriff Michael Sheahan, also named Mi- City officials had publicly argued that posals. chael Sheahan, in 1992. A campaign worker O’Hare and Midway could handle the region’s Opposing him are a Republican governor for Daley, the younger Shealan is now the aviation growth. But, privately, consultants and other politicians trying to transform a $65,000-a-year coordinator of security were urging city officials to immediately soybean field in Peotone into another major projects at O’Hare and Midway. find a Chicago site for a third airport so they airport that almost certainly would alleviate The city has also brought; in the brother of wouldn’t lose out to the surburbs. some gridlock and would placate constitu- Ald. Patrick Levar (45th), who heads the A suburban airport probably would be con- ents who live on the edge of O’Hare and are City Council’s Aviation Committee. Hired in trolled by a regional authority consisting of weary of airport noise and pollution. 1990, Michael Levar is now a $77,500 super- state officials, local lawmakers and, perhaps, At a time when other parts of the country visor of construction and maintenance at Daley appointees. are achieving political compromises to fa- O’Hare. In 1990, Daley dropped a bombshell, an- cilitate a surging number of the travelers Dominic Longo, a longtime Democratic op- nouncing plans for a $5 billion new airport at with new runways and air travelers with new erative who was convicted of vote fraud in Lake Calumet on the city’s Southeast Side.

VerDate 11-MAY-2000 06:50 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00066 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.036 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5157 The mayor argued that the new airport ‘‘It’s the mayor through his political influ- The numbers game continued two years would take pressure off O’Hare and appease ence,’’ said state Senate President James later. Landrum & Brown came out with new the northwest suburbs that were opposed to ‘‘Pate’’ Philip. ‘‘He’s been able to stop it.’’ forecasts that were uncomfortably close to O’Hare expansion. He proposed to pay for the The FAA denies that politics have affected predictions that state officials were using to airport with a new $3 passenger ticket tax its decisions on Peotone, and Kurland de- tout the need for Peotone. But this presented that Chicago Democrats pushed through clined to comment. a problem for the city. Congress. Contributing to the lack of progress to- ‘‘Clearly the similarities between the L&B But the Lake Calumet proposal imme- ward a Peotone airfield was fierce opposition numbers and those developed by the [state’s diately hit turbulence because of concerns from United and American Airlines, which consultants] will make it more difficult for over its spiraling costs and resistance from dominate O’Hare and vowed not to use a the city to debate the third-airport issue on South Siders who didn’t want Midway shut- third airport. the basis of demand forecasts,’’ consultant tered. The airport plan fell apart after Re- In 1995, United spearheaded a ‘‘Kill Ramon Ricondo wrote in a 1995 letter to a publicans helped kill it in the state Senate Peotone’’ campaign that included a letter top aviation official. in summer 1992, and Daley abandoned the from 16 airline executives to then-Gov. Jim The Daley administration didn’t change its idea. Edgar voicing their displeasure, according to position. It simply chose not to release the By focusing attention on Lake Calumet, records. 1995 forecasts, the Tribune learned from the city ‘‘succeeded again in preventing [the American also sent a representative to court records. state] from making any meaningful progress Downstate chambers of commerce to recruit Then, in 1998, the Daley administration towards developing a new airport in a subur- pulled its best statistical stunt yet, again ban location,’’ Landrum & Brown President allies in its opposition to Peotone. The air- line also has urged its employees who live in with the help of Landrum & Brown. Jeff Thomas wrote in a memo to city offi- The consultants finally delivered a fore- the northwest suburbs to press local officials cials. cast that the city could not only live with to drop out of the Suburban O’Hare Commis- ‘‘Thus the city has conducted & protracted but trumpet. The new figures were 25 percent but successful guerrilla war against the state sion, a coalition of suburbs that staunchly lower than the previous prediction. forces that would usurp control of the city’s oppose O’Hare expansion. The forecasting change was made possible, airports.’’ The status quo benefits the airlines be- in part, by careful manipulation of the num- It also left Daley with a huge new pot of cause they control 85 percent of the flights bers. Landrum & Brown plugged a population money, the passenger ticket tax, which has at O’Hare and, without a new airport, none forecast into its formula that was lower than funneled more than $600 million into the of the other large carriers has an entree into many other population estimates. city’s coffers since it was passed by Congress the Chicago market. The lower number—which called for the in 1990. The city has spent the money on run- But, once again, passengers are the losers Chicago area’s population to grow at about way resurfacing, terminal upgrades and con- in this economic equation. Many studies, in- half the rate of previous years—had the ef- sultants’ fees, but not on new runways or a cluding those by the U.S. General Account- fect of dampening the aviation forecast. new airport. ing Office, have shown that passengers pay Where Landrum & Brown had forecast 61 Lake Calumet was dead, but the battle for substantially more at airports dominated by million passengers for the year 2015 in its Peotone was just beginning. At the end of one or two major airlines. 1995 study, it now predicted only 46 million President George Bush’s tenure, in 1992, the Statistical shell game—ups and downs passengers in its revised forecast. (Last year, FAA approved $2 million to start the plan- about 36.3 million passengers boarded planes The City of Chicago’s political success in ning process for building an airport in at O’Hare.) Peotone. holding off a Peotone airport can also be ‘‘A realistic forecast proves a new rural But after President Clinton took office traced to a powerful tool: questionable sta- airport is not necessary for the region,’’ with some key campaign help from the Daley tistics. Landrum & Brown concluded in a summary family, the Peotone proposal ground to a vir- For years, Chicago officials have engaged of its findings. tual standstill in Washington. in a statistical shell game to mask the need Though it’s too soon to say if Landrum & Under the Clinton administration, some of for a new airport and to hide O’Hare’s capac- Brown’s prediction is off the mark, one thing the mayor’s staffers assumed key positions ity woes. is certain: The population number it used in the U.S. Department of Transportation As Jay Franke, Daley’s first aviation com- was far too low. Already, the population in and the FAA with over-sight over new air- missioner, said in an interview, ‘‘Forecasts the Chicago region has exceeded the forecast ports. For instance, Susan Kurland, former are generally made to order.’’ Franke was for 2007 that Landrum & Brown used for its chief counsel for the city’s Department of ousted in 1992. study, according to estimates by the U.S. Aviation, was an associate administrator for In the debate over airports, the key num- Census Bureau. airports for the FAA from 1996 to 1999. bers are forecasts of how many passengers ‘‘What L&B did was just go looking for low Catherine Lang, a former assistant com- are expected to fly out of an airport. By com- numbers,’’ said Suhail al Chalabi, a state missioner in the Department of Aviation, is paring predicted demand to an airport’s ca- aviation consultant. ‘‘Nobody has used num- now director of the FAA’s Office of Airport pacity—how many flights an airport can bers this low before.’’ Planning and Programming, which oversees handle without excessive delays—airport of- Officials at Landrum & Brown declined to the passenger ticket tax and approval for ficials try to determine whether a new run- comment. new airport projects. And Frank Kruesi, way or a new airport is needed. Despite some misgivings, the FAA accept- Daley’s first chief of policy, was assistant Forecasts by City Hall’s own aviation con- ed the city’s low forecasts for O’Hare, even secretary in the U.S. Department of Trans- sultants have repeatedly indicated since 1980 though its forecasts show that the number of portation from 1993 to 1997. He now heads the that O’Hare is running out of room. But this passengers at O’Hare will grow twice as fast Chicago Transit Authority. became a problem when Peotone emerged as in the next 15 years as the city predicts. Daley and other Illinois Democrats also the leading option. ‘‘The problem is one of political intrusion played a key role in the appointment of Clin- City officials have used a grab bag of tricks into the technical process,’’ U.S. Rep. Jesse ton’s first FAA administrator, David Hinson, to fix the problem. They have changed the Jackson Jr. (D–Ill.) wrote in a Sept. 20 letter former head of Midway Airlines. formula for devising forecasts and tossed to Transportation Secretary Rodney Slater. A few months after Hinson’s appointment, aside forecasts that didn’t match their argu- ‘‘Mayor Daley has argued that there is no the Clinton administration pulled planning ments. need for new runways, not at O’Hare and funds for the Peotone study, citing a lack of And they have insisted that O’Hare can definitely not in the south suburbs. ‘‘regional consensus.’’ handle more flights because of anticipated ‘‘He has made sure the statistics agree,’’ Illinois Transportation Secretary Kirk wrote Jackson, who believes a Peotone air- Brown—who handles the push for a Peotone improvements in air traffic control that haven’t yet materialized, records show. port would help his district. ‘‘The aviation airport under Gov. George Ryan, a Repub- planning process in Chicago, once a national lican—recalled that Hinson told him he had For example, a 1993 forecast by Landrum & model, is being corrupted and is truly a tech- favored Peotone but would ‘‘have to consult Brown showed that O’Hare would be out of nical disgrace.’’ with the mayor’’ before he proceeded with capacity in two years. the airport plan. ‘‘If this is the case, then why build any- Changing positions—running from runways Hinson, in an interview, said he didn’t re- thing at all except a new airport?’’ wrote The latest position out of City Hall is that member that conversation with the mayor, Doug Trezise, another city consultant in a it won’t stand in the way of Peotone—‘‘They though he recalled that Daley objected to a 1993 memo to Chicago aviation officials. can go build it,’’ the mayor now says—and Peotone airport. The solution was simple: Change the for- that new runways at O’Hare are unnecessary. Four years later, while Kurland oversaw mula. The Daley administration now says it can the program, the FAA quietly pulled the The original calculation was based on how meet demand at O’Hare through a $3.2 billion Peotone airport proposal off a list of planned many passengers would use O’Hare if enough building program called World Gateway that airport projects eligible for federal funding. runways were built to meet the demand. City is under review by the FAA. It calls for new The Peotone project had been on the plan- officials asked Landrum & Brown to base the terminals, parking spaces and expanded ning list since 1986. new forecast on how many passengers would light-rail service. Republican leaders maintain the Daley ad- use O’Hare given its existing capacity. It does not call for new runways, and city ministration has used its influence in Wash- The resulting numbers were much more officials contend O’Hare has sufficient capac- ington to block airport approval. palatable. ity through 2012. Officials, however, decline

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00067 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.038 pfrm09 PsN: H23PT1 H5158 CONGRESSIONAL RECORD — HOUSE July 23, 2002 to say exactly how many planes the airport In Atlanta, city, regional and state leaders to eliminate commuter air service and, then, can handle, and some experts think O’Hare is came together in support of a new runway at all aviation services to cities within 150 out of room now. Hartsfield International Airport, which is miles of Chicago. This trend began in 1992, ‘‘On the whole, the system works awfully now outdistancing O’Hare as the world’s with airlines increasing fares to downstate well,’’ Aviation Commissioner Thomas Walk- busiest airport. Yet, in winning expansion, communities, resulting in less passenger er said in a recent interview. ‘‘We will have Hartsfield had one huge advantage over traffic. The airlines then cut commuter serv- to get used to the occasional inconven- O’Hare: Partisan politics was never an issue ice and, eventually, may eliminate all serv- iences.’’ because nearly all major political players in ice to downstate communities; many already Though it might be logical for the city to Atlanta and Georgia are Democrats. have lost service. Eventually, the ability of lobby heavily for additional runways at Even so, negotiations took nearly a dec- the Chicago region to attract and retain O’Hare, it would be bad politics. ade, and it wasn’t until late last year that a businesses, jobs and residences would be af- If Daley were to argue for a new runway, key compromise was reached with College fected. In 1998 and 1999 some of these lost his Republican foes likely would pounce on Park, a municipality that borders the air- services were restored, due to adverse pub- that as evidence that a new airport in port and will be truncated by the new run- licity, intensive lobbying by officials, and Peotone is needed. way. The town got money to move a conven- pending Federal legislation. Also, the Republicans hold all the cards tion center and develop hotels, office build- In 1996, IDOT stated that, in order for the when it comes to O’Hare expansion. Final ap- ings and car rental facilities. In return, it Chicago region to continue as a major trans- proval for new runways rests with the gov- will lose 100 businesses and the homes of portation and commercial center in the 21st ernor’s office, and a Republican has been 2,500 people to demolition. century, the South Suburban Airport should governor since 1977. That’s the same sort of price that Bridge- be ready by 2001. However, political maneu- To make room for the runway, Daley ton, a middle-class suburb of St. Louis, is vers have kept the project in limbo. But ca- would have to use the city’s condemnation going to pay because of plans to expand pacity constraints and their impacts con- powers to take a significant chunk of Lambert-St. Louis International Airport. tinue to multiply. O’Hare already operates, Bensenville, a leader in the efforts to block Unlike College Park, Bridgeton has been in for safety reasons, under FAA restrictions on an expansion of O’Hare. Among the prop- court, fighting the plans that would level six the number of flights; but Congress is plan- erties the city would bulldoze are the Garden schools, at least two parks, six churches, 75 ning to lift these caps. Midway cannot be ex- Horseshoe neighborhood—home of more than businesses and nearly 2,000 homes. But, in panded to include more or longer runways, 2,000 people—as well as 28 businesses, a ceme- April, the Missouri Court of Appeals over- barring the displacement of surrounding tery near St. John’s Catholic Church and a ruled the municipality’s objections to the homes and businesses. Although it will not water tower. expansion, concluding, ‘‘The substantial ben- increase capacity, more than $2 billion will While Daley remains noncommittal on efits conferred by the operation of the air- be spent on landside improvements at these runways, his longtime supporters in the port on the public clearly outweigh the in- airports. business community now say they are cru- terest of Bridgeton. The expansion of Lam- Over the next 20 years, employment in the cial to the future of O’Hare and the local bert Airport is essential to its survival.’’ 14-county region is expected to grow by al- economy. United Airlines and the Civic Com- Among the 27 hub airports in the U.S., most two million jobs. With the new airport, mittee of the Commercial Club of Chicago, O’Hare is the only one that hasn’t built a jobs from Chicago’s three airports will grow an influential business group, say there is an new runway and has no plans to do so. to 674,000, almost 10 percent of the region’s immediate need for a new runway at O’Hare. Former Gov. Edgar, a Republican who par- total employment in 2020. Without the new The Republican opposition to new O’Hare ticipated in the airport feud during his eight airport, projected job growth in the 14-coun- runways has been staunch. With political years in office, now says the time has come ty region will be reduced by 535,000. In the power bases in the airport’s shadows, Philip, to forget politics and address a critical issue six-county region, the reduction would be U.S. Rep. Henry Hyde (R–Ill.) and state Atty. for the region. 415,000 jobs. The economies of many cities Gen. Jim Ryan have fought on behalf of con- ‘‘There’s a good case for a new runway at within 150 miles of Chicago will be adversely stituents who don’t want jet noise to in- O’Hare,’’ Edgar said. ‘‘There’s a good case for affected as their traditional businesses, fi- crease in their communities. a new airport in the south suburbs. The nancial and personal ties are cut or strained A suburban airport, which is supported by longer we wait, the more acute the problem and transferred to competing regional hubs. Gov. George Ryan and other key Repub- is going to be.’’ The location selected for the third airport licans, also would give Republicans access to is 23,845 acres of land 15 miles south of the the aviation jobs and contracts that Daley THE THIRD CHICAGO AIRPORT FACT SHEET Chicago city limits. The new airport will re- now solely controls. The Federal Aviation Administration has sult in a better distribution of jobs to the ex- While Chicago remains mired in political called for a major expansion of U.S. airports isting population; improved accessibility to gridlock, mayors and other governmental of- to meet increased demands on aviation. In jobs for minority populations: and a more- ficials across the nation have risked the po- 2020, Chicago’s regional demand will be two balanced regional growth. The site is the litical capital to increase capacity at their and a half times that of 1993, double that of closest feasible to the Chicago urban area airports. 1999. By 2001, over 7.1 million projected and has no significant environmental con- Since 1995, relatively little airport expan- enplanements in the Chicago region will not cerns. sion took place nationally—a total of four be accommodated unless the South Suburban The proposed Third Airport would bring new runways, five runways extensions and Airport is built. jobs and development to a mature portion of one runway reconstruction at nine of the 27 Five independent studies on the need for the region, hard hit by industrial automa- hub airports. an additional airport in the Chicago region tion. It makes use of an in-place transpor- However, over the next eight years, the concluded a third airport should be built. tation infrastructure and provides access to pace of construction will triple. Seventeen of The studies concluded the third airport will nearby inexpensive land for development. It the hubs are building or have plans for 17 have no negative impact on either Midway or will allow residents of the South Side to re- new runways, 12 extensions and one recon- O’Hare Airports. Instead, it would bring over duce both travel time and costs to their jobs. struction, all to be completed by 2008. $9 billion, annually, to our region, above and It will bring revenues to municipalities with One important reason for the shift in to beyond that of the existing airports by 2010; the highest tax assessments in the region. It high gear is that the opposition of neigh- over $16 billion by 2020. is smart growth. boring municipalities to airport expansion is The initial study, the Chicago Airport Ca- now being blunted or overridden. For dec- pacity Study, concluded that neither Mid- [From Crain’s Chicago Business, Jan. 29 2001] ades, complaints about noise and pollution way nor O’Hare Airports could be expanded HIGH COST OF GRIDLOCK have kept airport expansion projects in to meet Chicago’s long-term air transpor- check. tation needs. With the release of the state’s STALEMATE OVER AIRPORT EXPANSION IS But increasingly, court officials and legis- 1994 and 1995 demand forecast studies, it be- STARTING TO INFLICT DAMAGE lators are deciding those concerns are out- came clear that Midway and O’Hare Airports (BY GREG HINZ) weighed by the importance of the air traffic would be at or near capacity by the year Gov. George Ryan had barely dispatched system to the U.S. economy and the needs of 2000. By 1999, we have watched capacity con- his bagel and eggs when members of the Illi- millions of air travelers. straints cause major delays at O’Hare; and, nois Business Roundtable gave him cause for ‘‘Virtually every other major airport in by ripple effect, throughout the nation. indigestion. the country has added or is adding ground Building a new airport ensures that Chi- Chicago’s economic crown jewel, its once capacity,’’ said R. Eden Martin, president of cago remains the nation’s prime aviation world-leading aviation system, is in trouble, the Civic Committee of the Commercial Club hub into the next century. It also creates a the audience of leading corporate executives of Chicago, whose members include the wide array of airport-related jobs and con- bluntly told the governor at the private major airlines and which has opposed a tributes major revenues to state and local breakfast meeting late last fall. O’Hare major airport in Peotone. governments. A third airport means 236,000 International Airport is not being taken care ‘‘Why don’t we do in Chicago what an en- new jobs and $5.1 billion in annual wages, by of, the executives asserted. lightened airline industry, business commu- 2020. In fact, O’Hare now is so beset by delays, nity and political leadership was able to do IDOT studies state that capacity con- congestion and cancellations that financial in Atlanta?’’ Martin said. straints at O’Hare will, first, cause airlines services giant Household International Inc.

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00068 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.040 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5159 is locating new jobs out of state, Chairman Decisionmakers say that O’Hare’s reputa- O’Hare at the current levels of 900,000 (flights and CEO William Aidinger informed Mr. tion as a good place from which to do busi- a year) could cost $10 billion annually’’ in di- Ryan. When Prospect Heights-based House- ness is down—way down—with congestion rect spending on passenger services and indi- hold has been expanding, he said, it’s been costing Chicago businesses an estimated $3 rect benefits from economic activity such as expanding someplace else. billion last year in lost time and expenses, corporate meetings, the study concluded. That message is every bit as ominous as it according to an analysis by Deloitte & Tou- Incentives disappearing sounds for the Chicago-area economy. A dec- che LLP (Crain’s, July 31). Booz Allen derived that number by making ade of scorched-earth political warfare over Terrible reputation a key but logical assumption: When capacity O’Hare is beginning to take a toll, threat- ‘‘In the marketplace, the perception is that is limited, airlines will focus on the most ening the city’s status as the nation’s trans- Chicago is a horrible place to go through,’’ profitable side of their business here and ig- portation center and its draw as a corporate says Stephen Stoner, a facilities location ex- nore less lucrative traffic. headquarters and services center. As Booz Allen saw it, high-margin inter- Now, the engine that has generated an esti- pert who heads the U.S. real estate con- sulting practice for Arthur Andersen LLP. national passengers are the most valued, mated 500,000 jobs and $35 billion a year is at worth $2,310 each to the regional economy. risk of losing momentum. And continued ‘‘If I were the mayor, I’d be nervous. ‘‘ Confirmation that a problem exists comes Next in line are Chicago-area residents fly- constraints at O’Hare could cost the region from a surprising source—Mr. Edcrar, a Re- ing to or from other North American cities— up to $10 billion a year in lost economic ac- publican known for his supposed anti-Chi- known as origin and destination (O&D) pas- tivity—from business meetings to larger- cago attitude and support for a third airport sengers—worth $1,200 each. Last in the pri- scale corporate investment—according to at Peotone. ority queue: those flying here from smaller one recent study. The former governor says he quietly at- Midwestern cities, and connecting pas- Clearly, business, jobs and investment tempted to negotiate a pact with Mr. Daley sengers who can be dispatched to other hubs, aren’t coming to Chicago—at least not to the at the end of his term in 1998 in which he such as Atlanta, Dallas and Denver; they’re extent they might be, had government lead- would have agreed to a new runway at worth $430 each. ers resolved the fight over whether to add O’Hare, in exchange for the mayor signing Over time, connecting traffic and flights to runways at O’Hare or build a new airport in off on construction of a Peotone airport smaller cities will tend to be displaced, Booz Peotone. In the end, they may have to do using state and federal funds. Allen concluded. If enough of those go, there both. In the meantime, cities such as Denver Mr. Daley says such a conversation never eventually will be ‘‘less incentive for airlines are nabbing marketshare. to focus international growth investments ‘‘Could Chicago lose critical mass as a occurred. But Mr. Edgar says he made the previously unreported offer because he con- on Chicago.’’ business services center? It’s a strong possi- The reason: Why should, say, Iberia Air- cluded that airport gridlock is costing Illi- bility,’’ says William Testa, senior econo- lines run service to Chicago rather than De- nois. ‘‘If we don’t do something now, we’re mist and vice-president of the Federal Re- troit if Detroit has more flights to smaller going to be in trouble in years to come,’’ he serve Bank of Chicago. ‘‘Everything that’s American cities where Iberia’s passengers says. (See story, this issue.) growing (in the Chicago economy) is depend- live? National political leaders, too, are getting ent on that engine called O’Hare Airport.’’ Right now, international traffic is perking involved. ‘‘We either expand O’Hare Airport, Already in a hole along nicely at O’Hare, rising nearly 50 per- or we build another airport, or both,’’ Sen. cent in just the past four years. But the The situation is so troublesome that John McCain, R-Ariz., declared during a Sen- former Gov. Jim Edgar for the first time is process of dumping short flights in favor of ate Commerce Committee hearing last sum- long flights, and connecting traffic in favor revealing that he tried to cut an airport ex- mer. pansion deal just before he left office two of O&D business, has begun, according to Capacity issue is critical years ago. Pressure is rising fast on Mr. Suhail and Margery at Chatabi, principals in Ryan and Mayor Richard M. Daley to finish The shortage of runway space—‘‘capacity Chicago-based at Chalabi Group, the state the job. constraints’’ is the industry label—obviously consultant on the proposed Peotone airport. Most of the evidence of damage is so far isn’t the only cause of O’Hare’s woes. Labor While Chicago once was an aviation leader circumstantial. Few business people will strife and technological snafus, bad weather known for above-average growth, O’Hare op- talk about why they chose to locate a new and federal limits on the number of flights erations have been flat in recent years, and facility elsewhere. But as former Chicago all have contributed to the airport’s declin- domestic enplanements actually are down, Ms. al Chalabi notes. ‘‘The airlines are put- Aviation Commissioner Jay Franke puts it, ing stature. ting more of their (connecting) schedule in ‘‘By the time you know for sure you’ve been But at the center of the problem is the other hubs.’’ hurt in this business, it’s too late. It will need for one or more runways, which would Consistent with that loss of hub traffic, take 15 years to dig out the hole.’’ offset or ease the other constraints as O’Hare Mr. al Chalabi points to figures he’s derived How deep is the hole? Though some data gears up for possible expansion with the from federal reports that suggest O’Hare is are debatable, a general trend is clear: scheduled lifting of flight slot controls in The city is losing marketshare in the na- 2002. indeed losing marketshare. O’Hare tionwide aviation business, with O’Hare pas- ‘‘The region needs new runway capacity,’’ enplanements were up just under 9.0 percent senger volume growing at just two-thirds the argues Chicago attorney Joseph Karaganis, between 1995 and 1999, those data indicate— national rate in the past four years and do- who has made a career fighting O’Hare but compared with an average 13.5 percent in- mestic enplanements—the number of people does not dispute the notion that something crease for the nation’s 68 largest airports, boarding planes—down two years in a row. must be done. ‘‘The question is where to put and well below increases at rival hub air- ‘‘The picture at O’Hare continues to dete- them.’’ ports such as Dallas/Fort Worth (17.2 per- riorate,’’ says Robert Baker, vice-chairman Two major studies in recent years con- cent), Denver International (15.3 percent) of American Airlines, which is buying Trans cluded that the local economy would take a and Atlanta Hartsfield (29.7 percent). World Airlines and intends to expand TWA’s big hit if the airport capacity problem were If booming Midway Airport is included, the St. Louis hub. ‘‘Unless O’Hare is operated not solved. The first was a 1996 Dallas/Fort metro-Chicago hike is slightly more than 13 better than it has been and is allowed to Worth review by the Regional Economics Ap- percent, near the 9 national average, Mr. al grow with the rest of the economy, its com- plications Laboratory (REAL), a joint ven- Chalabi concedes- But Midway soon will hit petitiveness will decline.’’ ture between the University of Illinois and capacity and be unable to capture O’Hare O’Hare’s connecting, or hub business, is the Federal Reserve Bank of Chicago. overflow, he argues, and the O’Hare increase moving elsewhere, dropping from 60 percent REAL concluded that allowing airport ca- largely is driven by international, not do- of domestic enplanements in 1993 to a pro- pacity here to grow as much as the market mestic, business. jected 52 percent by early in the next decade, demands would create up to 55,000 jobs in Aviation Department reports indicate that according to the Department of Aviation. aviation-related fields alone by 2018, and add O’Hare’s domestic business almost certainly The loss of hub traffic means that O’Hare $15.7 billion in direct value to the metropoli- fell for the second year in a row in 2000, down stands to lose the large number of destina- tan-area economy. 1.2 million passengers, or nearly 2 percent, tions and flights that make Chicago such a Geoffrey Hewings, one of the chief authors and that the number of O&D enplanements is draw for corporate meetings, trade shows of that study, says he has not since at- at its lowest level since 1995. Remarkably, and even business expansion. That loss could tempted to measure whether capacity con- that flat-to-down performance came during, jeopardize O’Hare’s far more lucrative long- straints indeed have begun to exact a toll, a period of unparalleled prosperity, when air haul domestic and international business, but believes they’re ‘‘starting to. We were travel nationally was rising 2 percent to 3 which draws on passengers from feeder cit- suggesting, that, by 2001 or 2002, we’d begin percent a year. ies. to see a 1 percent or 2 percent loss (of poten- Runways not the key, city says ‘‘The challenges Chicago is facing give us tial growth).’’ But City Aviation Commissioner Thomas an opportunity to pick up some of their traf- Two subsequent studies by the Chicago of- Walker reads the figures differently. Chi- fic,’’ says Amy Bourgeron, deputy manager fice of Booz Allen & Hamilton, a consulting cago’s aviation market is ‘‘mature,’’ he in- of aviation at Denver International Airport, firm commissioned by the Civic Committee sists, and O’Hare won’t need any O’Hare is a key and fast—growing hub for Elk Grove of the Commercial Club of Chicago, reached losing new runways until at least 2012. Township-based United Airlines. ‘‘We have similar conclusions. Even if some version of O’Hare has been held back not by a runway the ability to grow. Peotone is built, ‘‘artificially constraining shortage but by federal slot rules, argues Mr.

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00069 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.042 pfrm09 PsN: H23PT1 H5160 CONGRESSIONAL RECORD — HOUSE July 23, 2002 Walker, whose boss, Mayor Daley, has made marketshare, and notes that the data likely unwilling to even acknowledge that an air- it clear the city does not want to discuss can be interpreted in various ways, but he’s port capacity problem exists, much less sit runways now. In fact, Mr. Walker says, ‘‘the nonetheless made up his mind about O’Hare: down and bargain. runway capacity we have isn’t matched’’ by ‘‘I haven’t been there in three years. I go But after a decade of dogfights over O’Hare the number of available gates, taxiways and anywhere else I can to avoid it.’’ and Peotone, there are signs the region may other ground facilities needed to handle the Even Chicago’s hometown airline, United, be at a critical turning point. With a new planes that do land. is avoiding Chicago to some degree. Though president, a governor perhaps in search of a O’Hare plans to remedy that situation with its headquarters is on the north edge of the legacy and a business establishment that’s its $3-billion World Gateway plan, which will airport, the carrier confirms that other hubs increasingly vocal about O’Hare’s impor- add two terminals and up to 32 gates, Mr. like Denver are getting business that O’Hare tance to its growth, the logjam could break. Walker says. Even so, O’Hare will grow more can’t handle. (See story, this issue.) The wild card is Mr. Daley and whether slowly than other U.S. airports, he con- Things are so tight here that a labor ac- he’s willing to push when pushing might cludes. ‘‘There just aren’t that many more tion or bad weather has a ripple effect—for work. Asked repeatedly in various forums destinations to serve, or that many which example, the stranding of thousands of about the airport problem, Mr. Daley dis- are underserved.’’ United passengers last summer. misses discussions about the need for addi- Ramon Ricondo, a consultant who works As serious as O’Hare’s problems are, the tional runway space. As for Peotone, the for O’Hare and other airports around the more basic question for Chicago is whether mayor usually responds, ‘‘If they want to country, says it’s ‘‘too soon’’ to worry about the airport wars have begun to claim victims build it, they should go buy the land.’’ recent weakness in O’Hare’s domestic busi- throughout the broader economy. There are reasonable compromises out ness. ‘‘You could have any number of things Some say not yet, but they’re worried. there,’’ says U.S. Rep. William O. Lipinski, going on,’’ he says, with one major carrier or ‘‘There is such a solid base of business here D-Chicago, who holds a crucial bargaining another temporarily moving traffic to suit that they see themselves surviving in spite post as the ranking Democrat on the House its particular needs. of O’Hare,’’ says Laurie Stone, president of Aviation Subcommittee. ‘‘Whether there are ‘‘If O’Hare was less desirable,’’ Mr. Ricondo the Greater O’Hare Assn. of Industry and people out there who are reasonable, I don’t concludes, ‘‘you wouldn’t see United and Commerce, a 1,200-member business group. ‘‘I know.’’ American fighting so hard to get more oates don’t see very much political leadership.’’ Another top Democrat may be jumping here.’’ Marginalizing O’Hare into the fray. Illinois House Speaker Michael But other data released by Mr. Walker’s Madigan is considering forming a committee Others—particularly in growing, transit- department indicate that O’Hare’s hub busi- on aviation, aides to the Chicago Democrat dependent fields such as law, accounting and ness has been down over an extended period, confirm. The panel would give Mr. Madigan a banking—have begun to adjust their work dropping from 60 percent of the airport’s do- platform to raise his profile on the subject of habits, or fear they will have to soon. mestic enplanements in 1989 to 55.5 percent runway and airport expansion. Diane Swonk, chief economist at Chicago’s in 1995. The figure has recovered a bit in the One sign auguring in favor of the obvious Bank One Corp., crew so fed up with O’Hare intervening years, but the city projects it compromise—a runway or two plus new that she began flying, out of much smaller, will fall to 51.8 percent by 2012. western ground access at O’Hare, and a small but more dependable, Midway. Once there, Additionally, while O’Hare continues to at- airport at Peotone—is that the public posi- she discovered that a lot of other bankers al- tract non-stop service to new destinations, tions of some of the major players are closer ready had made the move. many of them overseas, it is losing flights to than is generally realized. Michael Krauss, chief marketing officer at smaller Midwestern cities. For instance, while Suburban O’Hare Com- DiamondCluster International Inc., says em- Between December 1996 and December 2000, mission lawyer Joseph Karaganis argues ployees at his Chicago-based high-tech con- O’Hare added non-stop service to 32 new loca- that Peotone will be a financial flop unless sulting firm survived last summer’s flying, tions—including Hong Kong; Istanbul, Tur- limits are imposed on O’Hare operations, woes by, among other things, making more key; Osaka, Japan, and Krakow, Poland—ac- state Transportation Secretary Kirk Brown, conference calls. cording to Official Airline Guides, an Oak Peotone’s original patron, disagrees. But some companies already have decided Brook-based division of Britain’s Reed He says Peotone ‘‘absolutely’’ needs nei- to sidestep O’Hare. Elsevier plc Group. During the same period, ther caps at O’Hare nor a portion of O’Hare- Michael Lynch, director of public affairs at the airport lost non-stop service to 15 cities, generated passenger fees: ‘‘You don’t need to Illinois Tool Works Inc., says flying per- including Decatur, Danville and Sterling, Ill. take traffic from O’Hare.’’ Mr. Brown wants sonnel to Detroit for a weekly meeting with Terre Haute, Ind., and Mason City and Sioux the state to build a $500–million starter field big, auto clients became such a hassle that City, Iowa. at Peotone using state and federal funds. the Glenview-based manufacturer has cut The goal is to build an airport with point- Future performance a concern way back on trips. Instead, the firm taps the to-point flights, not a hub, that would start Industry experts say there is reason for teleconferencing network it recently built at out slowly and build, like Midway,’’ he says. Chicago to be concerned. 20 locations worldwide. Such a position should please executives American Airlines’ Mr. Baker says he wor- In fact, the company is so fed up with such as Robert Baker, vice-chairman of ries that O’Hare’s performance will further O’Hare that it almost located a new manu- American Airlines. He says American does deteriorate when carriers try to add more facturing facility near St. Louis, deciding on not want to be forced to pay for dual hubs at flights after the slot cap is lifted in 2002. He Ottawa, in LaSalle County, at the last O’Hare and Peotone, since the vast majority points to the chaos that enveloped New minute only because of other factors, Mr. of its passengers live closer to O’Hare, but York’s LaGuardia Airport last summer when Lynch says. ‘‘O’Hare is being, marginalized. concedes that ‘‘some small amount of local slot controls were lifted temporarily there. No. I priority service might work’’ at Peotone. ‘‘There’s no way to add Chicago capacity That view is being expressed more and without dragging (performance) down,’’ says The Midway factor more. Mr. Baker, who was interviewed before Another example: City gripes that building Lester Crown, the industrialist and fin- American announced plans to buy TWA. Peotone could kill Midway Airport appear to ancier who heads the Civic Committee’s ‘‘That would affect Chicago’s viability.’’ be overblown, at least legally. aviation panel, says that when he speaks Thomas Hansson, one of two chief authors It is true that leases signed by Southwest with his colleagues from other cities, they of the Booz Allen report, concurs that Airlines and other Midway carriers allow say two things about Chicago It’s ‘‘a wonder- O’Hare operations are ‘‘at capacity.’’ them to leave under certain conditions. But ful place to be,’’ and ‘‘O’Hare is a mess. What Walter Aue, American’s vice-president for those conditions are limited to cases in a shame.’’ capacity planning, confirms that his airline’s which the city itself develops another air- For those who want to keep the region expansion here will be ‘‘focused internation- port within 50 miles, or in which someone prosperous, he adds, ‘‘nothing, could be of ally,’’ even though it also would like to add else does and thereby forces ‘‘material limi- more benefit’’ than ending Chicago’s air service from Chicago to the East Coast. tations on operations’’ at Midway, according gridlock. ‘‘Anything else pales in Other carriers’ decisions in recent years to to the city’s lease with Southwest. comparison.’’ open hubs in cities such as Cincinnati and One well-placed city official concedes that Detroit are a sign of what’s occurring, he IS POLITICAL BREAKTHROUGH ON THE RADAR? the language is ‘‘intentionally vague.’’ And adds. ‘‘They’re a reflection that O’Hare Amid the harsh words and political flak Southwest’s director of property, Peter hasn’t grown in 20 years. O’Hare should be that dominate Chicago’s airport wars, a sur- Hampton, acknowledges that mere competi- growing at a greater rate than it is,’’ prise is emerging: the outline of a potential tion from Peotone would not be enough to Howard Putnam, a former United vice- compromise. cancel the lease, but argues that the mean- president who later headed Southwest Air- At first glance, airport peace seems as ing of ‘‘material limitations’’ might have to lines and the now-defunct Braniff Airways, likely as a Cubs World Series sweep. After be resolved in court. says he hears one statement a lot from top all, O’Hare’s politically powerful neighbors, Driving a possible compromise: political airline pros: ‘‘We don’t have enough con- led by the Suburban O’Hare Commission, not change. The relationship between Mr. Daley crete’’ in Chicago. only want to cap growth but also complain and Gov. George Ryan is as congenial as the Mr. Putnam says he hasn’t examined the bitterly about noise and air pollution. And relationship between Mr. Daley and former latest data on whether O’Hare is losing Mayor Richard M. Daley, by all accounts, is Gov. Jim Edgar was icy—and both officials

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00070 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.043 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5161 are under increasing pressure to work things Coast routes that will provide a lucrative No matter what the emperor said, believ- out now, while they still can. feed for long-haul domestic and inter- able or not, his followers displayed blind loy- Though the mayor flatly denies that he national flights, will enable United to grow alty. met with Mr. Edgar to discuss airport issues faster than before. But with O’Hare’s current In the late 1980s, Daley mocked the idea of in 1998, Arnold Weber, who was president of constraints, it’s possible that Chicago won’t a third airport, calling it unnecessary. In the Civic Committee of the Commercial Club reap the benefits of a larger, more powerful 1990, he did an about-face and proclaimed of Chicago, says the big-business lobbying United. that Chicago needed another airport or else group helped arrange the meeting and that The numbers tell a simple story. the city would ‘‘continue to lose business to Mr. Edgar briefed him on its outcome two or At the 6-year-old Denver International, Denver, Dallas, Atlanta and others.’’ Two three days later. where United and its United Express feeder years later, in another reversal, Daley de- I never ever had a conversation with him line are dominant, operations have been ris- clared that Chicago had enough airport ca- on that subject,’’ Mr. Daley says. Asked if he ing about 4 percent a year for the past five pacity for another 20 years. could work with Mr. Ryan on a compromise, years—about the same as in other airlines’ So, throughout the ’90s, the city paid hun- he says, ‘‘I don’t know. This is the governor’s mid-America hubs, such as Detroit, accord- dreds of millions of dollars to consultants, standoff.’’ ing to Mr. Knight. Much of that service is lobbyists and public relations firms to force- Why the mayoral reticence? provided by increasingly popular regional Some say Mr. Daley never got over his bad feed incorrect data to the public and the fed- jets, which carry fewer passengers but re- eral government, supporting the mayor’s airport experience of several years ago, when quire almost as much runway space as large the proposed Lake Calumet field was quickly bogus claim that the city needed no new ca- aircraft. pacity. All the while, O’Hare was choking on shot down, and is unwilling to expend more But at O’Hare, United’s operations and congestion, delays and gridlock. political capital. Other political insiders say enplanements—the number of passengers Mr. Daley’s mind is on a more practical mat- boarding planes—are up just 1 percent, Mr. As recently as last month, the mayor and ter: tens of millions of dollars in jobs and Knight says. the city Aviation Department reiterated contracts that friends and associates control Since United still wants to grow its high- that O’Hare needed no new runways until at O’Hare. margin international business in Chicago 2012. But the mayor may not be able to duck and to serve as many local residents as pos- Then on Feb. 1, the mayor flipped again, much longer. With Republicans, rather than sible an their domestic trips, something has dropping all pretense and admitting the ob- the anti-Peotone Clinton White House, now had to give. The something is connecting vious—that Chicago needed additional capac- running the U.S. Department of Transpor- hub service, in which out-of-towners fly here ity. Now the mayor is calling for new run- tation, Mr. Daley runs the risk of the GOP to get a flight to a third city. That service ways at O’Hare. winning crucial federal approval to build has begun to head elsewhere. Unfortunately for taxpayers, the mayor’s Peotone without giving O’Hare anything. ‘‘The percentage of our passengers that are deception has come with a heavy price tag. The pressure on Mr. Ryan is even more local in Chicago has been increasing,’’ Mr. To pay for his ill-fated third airport, Daley acute. A dealmaker par excellence, Mr. Ryan Knight says, jumping from 38 percent in 1994 in 1992 leveraged Congress to enact a $3 tick- could cut the mother of all deals on Chicago to 44 percent in 1999. That means connecting et tax on air travelers. The so-called pas- airports, State law gives him the power to passengers are down, to 56 percent from 62 senger facility charge was, according to Con- unilaterally approve more runways at percent. gress, to be used to increase airport capacity O’Hare. But with federal prosecutors having ‘‘While we continue to serve the local Chi- and enhance airline competition. badly damaged his reputation, Mr. Ryan’s cago market very effectively, we are increas- Instead, the city committed $3 billion in time in office may be running short. ing local service at the expense of connec- passenger facility charge receipts—all those Hastert could weigh in tions,’’ Mr. Knight concedes. ‘‘Some of that to be collected through 2017—to expand and There is one other key figure: U.S. House traffic that could go to Chicago is going else- gold-plate terminals, improve taxiways and Speaker J. Dennis Hastert, R-Yorkville. where.’’ aprons, and pay consultants—none of which Unlike powerful DuPage County politi- Mr. Knight doesn’t identify any particular adds capacity or competition to the over- cians such as Illinois Senate President flight or city that’s vanished from United’s crowded, overpriced O’Hare. James ‘‘Pate’’ Philip and U.S. Rep. Henry service roster. He insists that United’s re- Consequently, passengers are paying for a Hyde, R-Addison, he tends to favor O’Hare cent decision to drop non-stop service from new airport but getting increased fares, expansion because his district is far enough Chicago to Honolulu—O’Hare passengers now delays, cancellations and congestion at from the airport to be insulated from noise have to change planes in Los Angeles or San ‘‘O’Nightmare.’’ Francisco en route to Waikiki, just like the problems but close enough to share its eco- Now, given the mayor’s renewed call for folks from Des Moines—was based on other nomic benefits. If the city, as part of a run- runways, it is inevitable that City Hall and way deal, agrees to add a western entrance factors. But there are big smiles in Denver, where O’Hare’s dominant carriers, United and to O’Hare—just minutes away from Mr. American airlines, will return hat-in-hand to Hastert’s district—the speaker might bite, the total number of passengers leapt 21 per- cent to an estimated 39.2 million last year ask the federal government and the public to insiders say. pony up more money. Bottom line: ‘‘A deal is possible. There’s from 32.3 million in 1996, far surpassing Chi- After violating the public trust so often, probably as good a chance now as ever,’’ says cago’s modest 5 percent increase to an esti- the mayor wants to be the steward of it. But one top Springfield insider. ‘‘At some point, mated 72.4 million in the same period. his tactics have led to misplaced priorities I think the governor will be willing to talk.’’ United already has added 50 flights a day and misallocation of funds. Chicago deserves But will Mr. Daley talk, too? in Denver since the city’s old Stapleton Air- better. DENVER’S SKIES FRIENDLIER AS UNITED port closed in early 1995, and United Express Fortunately, there is an alternative. The EXPANDS service is up 25% in three years. The airline has agreed to lease 10 more gates in Denver— State of Illinois has proposed building a With 450 departures a day from O’Hare more than the eight additional spots it will third airport near Peotone. As proposed, the International Airport and its corporate head- get under O’Hare’s pending World Gateway inaugural airport could be built faster, quarters just a few blocks away from the ter- expansion—and announced last June that cheaper, cleaner and safer than a new run- minals, United Airlines might be said to it’s building a $100-million, 36-gate regional way at O’Hare. have a major investment in Chicago’s avia- concourse there. With Peotone’s stock suddenly rising with tion system. But when it comes to growing ‘‘They are growing here. We like that,’’ the new administration in Washington, its mid-continent hubs, United’s rising star says Amy Bourgeron, Denver’s deputy man- Daley and his supporters in business and the is located a thousand miles away from its ager of aviation. ‘‘We have competitive ad- media are promoting a compromise. Many hometown, in Denver. vantages over other airports that have con- are advocating that O’Hare get a new runway United has added dozens of flights at Den- gestion and traffic problems.’’ in exchange for Peotone getting off the ver International Airport since 1995, while Mr. Knight does have a little good news for ground. Of course, a new runway at O’Hare its O’Hare operations and passenger flow O’Hare. For at least the next five years, it makes Peotone unnecessary for at least sev- have barely edged up. will remain United’s single largest hub. ‘‘Our ability to grow (O’Hare) has been lim- eral more years. Meanwhile, he has a sharp reply to conten- ited,’’ says Kevin Knight, United’s vice-presi- I oppose such a deal. The city has strained tions by city officials that Chicago is a ‘‘ma- dent in charge of route development, blam- its credibility and blocked the doorway of ture’’ market in need of little new service: ‘‘I ing a shortage of gates that will be only par- opportunity long enough. The region is pay- couldn’t agree with that. This is a viable, tially alleviated by O’Hare’s pending expan- ing with lost jobs, market share and tour- growing market.’’ sion, about-to-expire federal slot rules and a ism. Passengers are paying with high fares and poor service. shortage of runways that shows no sign of [From the Chicago Sun-Times, Feb. 17, 2001] easing. For the sake of safety and fairness, ‘‘One of the major challenges we face is MAYOR STANDS EXPOSED ON AIRPORT Peotone must be the taxpayers’ new first pri- getting airplanes out of the airport,’’ he say. (By Jesse L. Jackson, Jr.) ority. Because the naked truth is, the city, ‘‘That means runways.’’ Mayor Daley’s erratic posturing on a third the mayor and the airlines no longer can be The carrier’s pending acquisition of US airport in Chicago reminds me of the fabled blindly trusted to ensure that Illinois gets Airways Group Inc., with its coveted East emperor with no clothes. the best deal.

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00071 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.044 pfrm09 PsN: H23PT1 H5162 CONGRESSIONAL RECORD — HOUSE July 23, 2002

A MESSAGE FROM THE MAYOR but also makes available a huge selection of sources to cover such expenditures can real- (By Richard M. Daly) direct destinations for Chicagoans to points istically aspire to build an airport in today’s around the world. This, in turn, makes Chi- environment. Chicago is the only site with Chicago’s Southeast Side, along with the cago a very attractive location for business that capacity. entire Calumet region, has been in a state of and industry that rely heavily on convenient A new airport will allow Chicago to retain economic decline since the steel industry passenger and air freight service. its leadership in aviation well into the next and its related businesses left the area. Aviation leadership means a great deal to century and continue to enjoy the many eco- The loss of this industrial base proved dev- Chicagoans. If the new airport is not built, nomic benefits inherent in that position. astating to many thousands of families the city will likely continue to lose business forced to endure years of harder times. CHICAGO AVIATION MILESTONES to Denver, Dallas, Atlanta and others that Over the years that followed, there were 1927—‘‘Chicago Airpark’’ (now Midway) more aggressively compete with new and im- many promises of revitalization and major opens as the first municipally owned and op- proved facilities. Should airline business go new industry. None of them amounted to erated airport in United States. elsewhere, Chicago will lose many of the jobs anything. 1932—Midway Airport, the birthplace of it now enjoys. There are two realistic futures for this municipal aviation, becomes the world’s The central position occupied by Chicago area. busiest airport, serving 100,847 passengers an- in the nation’s air transportation system has One is to continue struggling, fighting for nually. been extremely important to the economic 1963—O’Hare International Airport is dedi- dwindling resources that will never be growth and development of the entire region. cated by President John Kennedy, heralding enough to restore the area to economic and The economic impact of O’Hare—the state’s the beginning of the jet age in Chicago. environmental health. seventh-largest employer—is more than $9 1970—O’Hare continues as the world’s busi- A comprehensive clean-up of the industrial billion each year and the airport supports est airport, serving 29 million passengers an- pollution alone would cost hundreds of mil- over 180,000 jobs. The Lake Calumet Airport nually. lions of dollars that simply are unavailable will be larger in size and generate even 1990—On February 15, Mayor Daley unveils from the federal government. greater economic benefits and jobs. his proposal for the Lake Calumet Airport to The other future is one that offers tremen- Forecasts for the future of air travel indi- ensure Chicago’s aviation leadership into the dous hope: the prosperity of hundreds of cate that Chicago’s present airports will not 21st Century. thousands of new jobs and an economic re- be able to handle the increased demands of birth that includes a cleanup-up environ- air transportation expected in the next cen- AIRPORT WILL GENERATE NEW JOBS ment. tury. As demand for air service increases, As the residents know, the Lake Calumet It is a future that will cost billions of dol- delays and congestion at Chicago’s airports areas has been in an economic slump that lars to create. And there is only one possible are getting worse. As a result, the share of has lasted for nearly two decades. Since way to raise this money: the Lake Calumet business handled by Chicago already has many steel mills, factories and neighborhood Airport. begun to decline. businesses were closed, many former workers While my airport proposal is good for the In 1986, the Illinois Department of Trans- have had to take lower paying jobs. entire City of Chicago, it is the Calumet re- portation began a feasibility study for a Despite the many promises of jobs from gion that will most benefit. third Chicago airport. The results clearly same local politicians over the years, noth- Construction and operation of this inter- demonstrated that the location that would ing has been found to replace the good-pay- national airport will create a huge economic provide efficient service to the most pas- ing jobs that used to be plentiful for area engine that will pump new life into this re- sengers is between Chicago’s Loop and Gary, residents. gion. Indiana. This is why the Lake Calumet Airport It will bring new prosperity to the entire Chicago Mayor Richard M. Daley proposed project is so important for the area. It brings area, making it the most dynamic in the the Lake Calumet airport site as the best far more than just an airport. It will revi- state. means for revitalization of the north-eastern talize the Southeast Side of Chicago and the The economic benefits of this project are Illinois and northwestern Indiana region. Lo- entire Calumet region. The airport will gen- so immense—we are talking billions of dol- cated halfway between the Loop and Gary, it erate thousands of jobs and business oppor- lars each year—that it will present no dif- is ideally situated to attract a significant tunities. ficulty to create new communities for those share of Chicago’s air transportation mar- The Lake Calumet Airport will provide an residents who must someday relocate near- ket. News organizations including the Chi- economic rebirth for an area with a rich her- by. cago Sun-Times, Crains’s Chicago Business, itage founded on a strong work ethic. The These communities can even be modeled the Chicago Tribune and the Southtown airport is expected to generate nearly $14 bil- after what is now in place—if that is what Economist have recognized the benefits of lion each year and bring approximately the residents desire. the Lake Calumet Airport concept, as have a 200,000 new jobs to the region once it be- We can do all this. It’s that big a project. broad cross section of community, labor and comes operational in the year 2010. The jobs Chicago is a city of neighborhoods and of business leaders. include every line of work in the aviation in- families. Many Southeast Side residents Sponsored by the states of Illinois and In- dustry, along with thousands of positions in have roots in the area going back genera- diana and the City of Chicago, a major study airport spin-off businesses. tions. is now underway of five new airport sites: The project will require thousands of con- All of this can be preserved, both in the the Chicago Lake Calumet location; expan- struction workers to build the airport facili- city and throughout the Calumet region, as sion of the Gary Municipal Airport; Rock- ties and the new housing and business devel- the new airport takes shape. ville Township in northwest Kankakee Coun- opments that will spring up around the air- I wouldn’t have it any other way. ty; Peotone, Illinois in Will County; and a lo- port. These jobs will offer competitive A few opponents of the airport believe the cation on the Illinois-Indiana state line east wages. area is being asked to sacrifice itself for the of Beecher, Illinois—also in Will County. The Mayor is committed to establishing a good of the rest of Chicago. The results of this study, to be completed program that gives residents from the af- I ask no sacrifice other than to give up the in Fall 1991, will compare the suitability of fected communities the first opportunity to false promises of the past, in favor of a real these sites as airports under established fi- train and apply for these jobs. future for the community and all who call it nancial, environmental, social and technical The city will develop a comprehensive job home. criteria. The Bi-State Airport Policy Com- training and employment program by work- mittee, made up of the appointed representa- ing with unions, business developers, women- LAKE CALUMET AIRPORT: THE FUTURE OF tives of the three sponsors, will review these and minority-owned businesses and area CHICAGO findings and recommend a site to be devel- schools. City colleges and vocational schools Chicago’s O’Hare International Airport is oped as an airport for the region. will be encouraged to establish courses to again the busiest in the world for 1990, but The advantages of the Lake Calumet site train residents for the jobs that will be need- this coveted title did not come by chance. are that it addresses the region’s need for a ed at the airport and in the many spin-off Chicago worked hard to become the trans- new airport, not only by attracting pas- businesses. portation hub of the nation. sengers, but also by improving the environ- The city will encourage business devel- Competition in the aviation world is more ment (see ‘‘Airport to provide health and en- opers to support the job training programs. intense than ever. Today other cities aggres- vironmental benefits’’, page 2). These advan- Contractors for the numerous project tasks sively pursue this prestigious leadership po- tages make it a strong contender. will be selected, in part, based upon their sition in the nation’s air transportation sys- The lead time for developing a major air- commitment to support the local employ- tem and the jobs and economic benefits that port is very long—15 years or more. Several ment pool. go with it. complex steps must be taken after site selec- Not all passengers using Chicago airports tion is completed. They include: master PARTIAL LIST OF THE JOBS THAT SUPPORT AIRPORT begin or end their trips here. About half are planning, environmental review, financing, OPERATIONS connecting passengers using the major air- land acquisition, site preparation and con- line hub operations at O’Hare. Occupation Middle Range struction. Earnings * This arrangement not only makes them The expenses are enormous. At a cost of $5 customers of the airport bringing in revenue, billion, only location with the financial re- Ticket Agent ...... $26,208–$34,996

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00072 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.059 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5163 PARTIAL LIST OF THE JOBS THAT SUPPORT AIRPORT cation; their connecting forecasts were high- 8. These same residents do have the re- OPERATIONS—Continued er than IDOT’s. gion’s highest tax rates, however; without O’Hare’s current connecting is 54.7%, businesses and industries, the residents, slightly under its past average. IDOT as- alone, must pay for all their services. Occupation Middle Range Earnings * sumed 50% connecting for O’Hare in 2001; 51% 9. New businesses and industries want ac- Line Maintenance Inspector ...... 36,400–44,262 for the region. cess to major airports. O’Hare’s nearby com- Motor Vehicle Mechanic ...... 30,555–41,808 AVIATION GROWTH PARALLELS IDOT FORECASTS munities have run out of space to offer. The Aircraft Inspector ...... 36,400–45,302 South Side has ample land, but no airport. Since their national forecasts of 1994 (base Aircraft Mechanic ...... 30,784–39,728 The ample land also allows the construction Ramp Service Helper ...... 20,093–34,778 for IDOT forecasts), the FAA has generated of an environmentally-sensitive airport. Stock Clerk ...... 24,814–33,488 five 12-year forecasts, five long-range na- Aircraft Cleaner ...... 15,413–28,600 10. To accommodate the economic growth tional forecasts through 2020, and five ter- Computer Programmer ...... 25,766–30,576 anticipated over the next 20 years, the Chi- Computer Systems Analyst ...... 34,684–59,202 minal area forecasts. cago region needs additional airport capac- Janitor, Porter, Cleaner ...... 11,315–27,706 All the FAA national forecasts are higher Dispatchers ...... 29,640–55,120 ity. To balance the economic growth, it than the study’s base forecast. * In 1989 dollars. Although it continues to contest IDOT’s needs a South Suburban Airport. Source: U.S. Dept. of Labor, Bureau of Labor Statistics. forecasts, the City of Chicago and its con- SOUTH SUBURBAN AIRPORT: AVIATION DEMAND sultants are using forecasts that are nearly IN THE CHICAGO REGION SOUTH SUBURBAN AIRPORT: AVIATION DEMAND identical. BACKGROUND ASSUMPTIONS FOR DEMAND IN THE CHICAGO REGION The City and State are using IDOT socio- FORECASTS BACKGROIUND ASSUMPTIONS FOR DEMAND economic and aviation forecasts for all Aviation demand is derived from a few FORECASTS short- and long-term regional transportation basic factors: Aviation demand is derived from a few planning. The socio-economic dynamics and growth basic factors: Other aviation plans (Gary Airport Master of the region. • The national/international growth in avia- Plan; Booz Allen forecasts for O’Hare Inter- The location/desirability of the region for tion. national) are consistent with IDOT forecasts. providing connecting flights. The socio-economic dynamics and growth CAPACITY CONSTRAINTS JEOPARDIZE ECONOMIC The national/international growth in avia- of the region. AND AVIATION GROWTH tion. The location/desirability of the region for The ability of the region’s airports to ac- The ability of the region to accommodate providing connecting flights. commodate demand is a most-serious con- this demand depends on: The ability of the region to accommodate cern. The Chicago region has reached avia- The capacity of its airports. this demand depends on: tion capacity. These aviation capacity con- The competitiveness of its fares. The capacity of its airports. straints have dampened regional growth: SOCIO-ECONOMICS CREATE DEMAND The competitiveness of its fares. Since 1995, O’Hare’s growth in commercial Since the original aviation forecasts, made NATIONAL/INTERNATIONAL AVIATION GROWTH operations has stopped. in 1994, the socio-economic performance of The FAA forecasts a doubling in aviation Domestic enplanements at O’Hare have de- the Chicago region has matched or exceeded growth over a 15 year period. clined this year. expectations: International enplanements and freight are Small cities have been dropped from serv- In 1990–1996, population and employment growing even more rapidly. ice. for the 14- and 9-County regions grew at • The FAA and the Airports Council Inter- Booz Allen says the international market rates and volumes slightly above those fore- national have equated this growth to 10 is not being well served. cast. O’Hare Airports. Fares at O’Hare have risen above the aver- The Chicago Consolidated Area (Kenosha By 2012, there will be more than 1 billion age for large airports. to Michigan City) produced 1,311,000 jobs be- enplanements, 2 billion passengers in the O‘Hare delays have been much greater this tween 1970 and 1996; and added 617,260 per- U.S. year than last; O’Hare’s delays are among sons. the nation’s highest and cascade throughout SOCIO-ECONOMICS CREATE DEMAND The regional planning agencies—primarily the nation’s airports. NIPC, but also NIRPC have increased their Since the original aviation forecasts, made The FAA has long forecasted such capacity 2020 forecasts, to reflect this growth. in 1994, the socio-economic performance of problems and resultant delays. In 1992 it Woods & Poole Economics (the national the Chicago region has matched or exceeded forecasted a doubling of airports with delay forecast used in the former IDOT study), in expectations: problems by 2001. its 1999 edition, expects the Chicago region In 1990–1996, population and employment The forecasts have arrived a bit ahead of to produce the largest volume growth in em- for the 14- and 9-County regions grew at schedule. Without additional capacity, the ployment of any metropolitan region in the rates and volumes slightly above those fore- economic well-being of both Chicago and the U.S.: for 1996–2020=1,118,660 job growth; for cast. nation are jeopardized. 1990–2020=1,635,570 jobs growth. The Chicago Consolidated Area (Kenosha THE GROWING IMBALANCE IN THE REGION’S NPA, author of the forecasts used by the to Michigan City) produced 1,311,000 jobs be- GROWTH, AND ACCESS TO JOBS City of Chicago in 1998 and once much lower, tween 1970 and 1996; and added 617,260 per- 1. The Chicago region has grown robustly in 1999 raised their economic forecasts to sons. over the past 25–30 years. match those of W&P. The regional planning agencies have in- Over 1.310 million jobs (1970–96) for the con- creased their 2020 forecasts, to reflect this LOCATION DRIVES CONNECTING FLIGHTS solidated area. growth. So has NPA, author for forecasts Because of its central location and high Over 275,000 jobs between 1990 and 1997, used by City of Chicago. concentration of jobs and population, the alone, for the six-county area. Woods & Poole Economics (the national Chicago region is a critical location for con- 2. This growth has been very uneven. The forecast used by IDOT), in its 1999 edition, necting flights: North has prospered, while the South has expects the Chicago region to produce the The recent Booz Allen study, prepared for languished. largest volume growth in employment of any the City, forecasts an international growth 3. The region’s center has migrated from metropolitan region in the U.S.: for 1996— that is higher than IDOT’s; and claims that Downtown Chicago (with its excellent public 2020, a 1,118,660 job growth; for 1990—2020, a high ratios of connecting to O/D are not just transportation access) to the area around 1,635,570 job growth. desirable, but necessary. O’Hare (dependent on autos). Chicago’s economy can continue its robust The City of Chicago, in 1998, forecast con- 4. The City of Chicago lost over 27,000 jobs growth only if it can provide excellent avia- necting enplanements based on regional lo- between 1991 and 1997; 11,000 of these losses tion access. And, it can serve the region fair- cation; their connecting forecasts were high- were from the South Loop. ly, only if it provides that access to the er than IDOT’s. 5. The suburbs grew by 300,000 jobs. The south suburbs. The FAA’s latest estimates put O’Hare’s areas to the north, northwest and west connecting at 54.70% slightly under its aver- LOCATION DRIVES CONNECTING FLIGHTS (O’Hare-influenced) contributed nearly age percentage of the past 15 years. IDOT as- Because of its central location and high 200,000 of this growth. sumed 50% connecting for O’Hare in 2001; and concentration of jobs and population, the 6. With 500,000 jobs in Chicago’s CBD, 51% for the region. Chicago region is a critical location for con- versus 450,000 in North Suburban Cook and necting flights: 150,000 in Northeast DuPage, the economic AVIATION GROWTH PARALLELS IDOT FORECASTS The recent Booz•Allen study, prepared for center of the region has shifted from Down- Since their national forecasts of 1994 (base the City, forecasts an international growth town to O’Hare. for IDOT forecast), the FAA has generated that is higher than IDOT’s; and claims that 7. Consequently, residents of the South five 12-year forecasts, five long-range na- high ratios of connecting to O/D are not just Side and South Suburbs have commutes to tional forecasts through 2020, and five ter- desirable, but necessary. work that are among the nation’s longest. minal area forecasts. The City of Chicago, in 1998, forecast con- There is little public transit between sub- All the FAA national forecasts are higher necting enplanements based on regional lo- urbs. than the study’s base forecast.

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00073 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.062 pfrm09 PsN: H23PT1 H5164 CONGRESSIONAL RECORD — HOUSE July 23, 2002 Although it continues to contest IDOT’s gion has reached capacity. Aviation capacity enplanements. Capacity limited O’Hare’s forecasts, the City of Chicago and its con- constraints have dampened regional growth: growth. The City of Chicago claimed that we sultants are using forecasts that are nearly Since 1995, O’Hare’s growth in commercial should, ‘‘look at the Chicago aviation system operations has stopped. identical. (O’Hare and Midway) which combined, make Domestic enplanements at O’Hare have de- The City and State are using IDOT socio- clined this year. Chicago the world’s busiest system.’’ Unfor- economic and aviation forecasts for short- Delays have been significantly greater this tunately, this claim is wrong; but a look at and long-term regional transportation plan- year than last. the major regional aviation systems in the ning. Small cities have been dropped from serv- country shows that Chicago is slipping in ac- Other aviation plans Gary Airport Master ice. commodating its regional demand. Plan; Booz Allen forecasts for O’Hare inter- Booz Allen says the international market national are consistent with IDOT forecasts. is not being well served. In 1993, the Chicago regional system Fares at O’hare have risen about the aver- ranked second, behind New York, only. By CAPACITY CONSTRAINTS JEOPARDIZE ECONOMIC age for large airports. 1998, it was about to slip behind Los Angeles, AND AVIATION GROWTH ABILITY TO ACCOMMODATE REGIONAL DEMAND but rallied at year’s end. By 2015, however, While forecasts are an issue, it is the abil- IS DECLINING Chicago will have slipped to fourth, behind ity of the region’s airports to accommodate In 1998, (FAA statistics) O’Hare slipped to New York, Los Angeles and Atlanta. demand that is most serious. The Chicago re- second place, behind Atlanta’s Hartsfield, in MAJOR AIRPORT SYSTEMS [Enplanements in thousands and regional rank]

1993–98 Region 1993 1998 growth 2015 (percent)

Chicago (O’Hare, Midway) ...... 33,017 (2) 39,231 (2) 16 65,551 (4) Atlanta ...... 22,282 (6) 35,255 (4) 53 65,719 (3) New York (JFK, Laguardia, Newark) ...... 36,855 (1) 43,895 (1) 20 70,514 (2) Los Angeles (LAX, John Wayne, Ontario, Burbank) ...... 31,878 (3) 38,510 (3) 25 71,377 (1) 1 FAA—Terminal Area forecasts Summary: fiscal Years 1998–2015 estimates had Chicago slipping to 3rd in 1998. FAA—Terminal Area Forecasts Summary: Fiscal Years 1999–2015—source of above data.

Chicago’s slippage, over the five-year pe- tors determining corporate location, such jobs, or 71 percent of the net growth. With riod (1993–1998) shown, indicates its inability proximity in Chicago is both costly and rare. 500,000 jobs in Chicago’s Central Business to accommodate regional aviation demands. The region has missed a window of oppor- District versus 450,000 in North Suburban Chicago’s regional growth, at 16%, lagged tunity when: jobs have grown beyond expec- Cook County and 150,000 in Northeast Du far behind Atlanta’s, at 53%. tation; financing was available; business eco- Page County, the economic center of the re- Chicago also lagged behind the regions nomic conditions were very good; and com- gion has shifted from downtown to O’Hare. that have capacity-constrained major air- mercial development rebounded. O’Hare International Airport is, undoubt- ports—New York, Washington, San Fran- Without a major investment in airport in- edly, the great economic engine it is por- cisco and Los Angeles—because those regions frastructure, by 2020 the Chicago region will trayed. But, it has run out of space, both in have utilized third and fourth airports. have forfeited: 30.7 million regional the air and on the ground. Its enormous at- Recent statistics indicate that O’Hare has enplanements unaccommodated; 500,000 jobs traction, to business and industry, has slipped behind in operations, as well as and attendant economic opportunities lost. brought thousands of enterprises, hundreds enplanements, a clear indication of capacity of thousands of jobs, millions of visitors and constraints. CHICAGO’S THIRD AIRPORT AND THE FUTURE OF billions of dollars, annually, to the Chicago There are no socio-economic reasons for a THE CHICAGO REGION: AN OPPORTUNITY FOR region. On this, we all agree. But, the area dampened regional demand. SMART GROWTH, INFILL REDEVELOPMENT surrounding it is choking on the develop- OPPORTUNITIES ALREADY HAVE BEEN LOST; AND REGIONAL BALANCE ment. Other areas, particularly the South Side, are in great need of both jobs and bet- OTHERS WILL FOLLOW The Midwest and, in particular, the Chi- ter airport access. In fact, the two issues are cago Metropolitan Area, has had a remark- It is always difficult to document events closely related. and forecasts that do not materialize. But if able turnaround in economic fortune over The massive development attracted by you trust your forecasts, some estimates can the past decade. It has shed its ‘‘rust-belt’’ O’Hare Airport makes airport expansion be made and general conclusions reached. image and has produced remarkable eco- there costly, time-consuming, difficult and Over the past decade, the Chicago region nomic growth. intrusive. Traffic often is brought to a near has missed the following opportunities: Between 1990 and 1998, the six-county Chi- halt on the expressways leading to O’Hare; When Delta could not accommodate its de- cago area grew by 505,500 persons, a 7 percent future traffic problems would be compounded mand at O’Hare, it moved its Midwest hub increase. While this percent increase is mod- many times over. O’Hare’s neighbors—well- operations to Cincinnati. Cincinnati, with a erate, the numerical increase is equivalent aware of its many economic contributions— metro area population of 1.729 million in 1980 to a city larger than Denver. also are wary of expansion, weary of noise and 1.969 million in 1999, has watched its air- Between 1990 and 1997, the six-county area and traffic, and fearful of possible future port grow from 2.300 million enplanements, grew by 275,000 jobs, a 9 percent increase. Be- compromises on safety. On the opposite side in 1986, to 9.327 million enplanements, in tween 1970 and 1996, the region (Kenosha to of the region—and the other side of the ledg- 1997; and is forecast to grow to 21.826 million Michigan City) grew by 1.310 million jobs, er—are the communities of the Chicago enplanements by 2015. the fifth largest increase in the nation. South Side and the South Suburbs. By all ac- Both the U.S. Postal Service and Fed Ex Between 1996 and 2020, the Chicago region counts, these areas find themselves over- have built major facilities at Indianapolis is projected to grow by 785,000 persons. This looked and under-served—primarily due to Airport. United Airlines built its mainte- is a city the size of San Francisco. their distance from the region’s airports. nance facility there, as well. UPS built Between 1996 and 2020, the Chicago region This economic disparity is clearly evident major facilities at Louisville and Rockford is projected to have the largest growth of from the following maps, which show job Airports. any metro area in the U.S., adding 1.118 mil- concentrations in 1960 and 1990. This period United Airlines, Chicago’s hometown air- lion jobs. marked major declines in manufacturing line, has developed its European hub at Dul- In spite of these significant regional turn- jobs in the region’s South Side; and a rise in les Airport. It now is transferring increasing arounds, the City of Chicago continued to both manufacturing and service jobs in the numbers of connections to Denver, the air- lose ground. Between 1991 and 1997, the City North/Northwest, around O’Hare. Airport ac- port it opposed so vehemently. of Chicago lost over 27,000 jobs; 11,000 were cess was the difference. Major conventions have been lost, in total from the South Loop. Every one of the City’s The solution to the region’s needs is the or in part, to the Chicago area. An IDOT eight major community areas experienced Third Chicago Airport. Development of the study showed that average fares from across losses, with the exception of North Michigan Third Chicago Airport is a true urbanist’s the country to Orlando and to Las Vegas Avenue and the Northwest area around dream: obtaining multiple benefits from one were lower than to Chicago despite the fact O’Hare International Airport. The Far investment. Why, then, is it being ignored? that average distances to Chicago are small- South, Southwest and South communities When you have two powerful and thoughtful er. experienced the greatest losses. representatives of the people—Congressman Chicago, over the past several years, has This development trend extended to the Henry Hyde saying ‘‘we’ve had enough,’’ and lot major headquarters. Although many suburban area. While the six-county Chicago Congressman Jesse Jackson, Jr. saying ‘‘let losses were due to acquisitions/mergers, few Area grew by 275,000, the north and north- us have some’’—perhaps we should listen to new corporate headquarters have chosen to west suburbs were the major beneficiaries. them. Other representatives—Congressmen locate in the Chicago region. Although prox- DuPage, Lake and Northwest Suburban Cook Jerry Weller, Bobby Rush, and Tom Ewing, imity to a major airport is one of three fac- (around O’Hare) Counties contributed 194,000 Senator Peter Fitzgerald, Governor George

VerDate 11-MAY-2000 06:24 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00074 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.064 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5165 Ryan, Senate President Pate Phillip—plus business, every individual with family and provide 235,000 airport-related jobs—in the scores of local mayors, hundreds of local friends in far-flung places. As is well-known, right places—by 2020. Additional airport ac- businesses and hundreds of thousands of resi- access to a major airport is one of the top cess jobs will benefit the entire region. In ad- dents, have joined in the effort to bring the three requirements of a locating or expand- dition, it will reinforce the City of Chicago’s airport to the South Suburbs. Perhaps, with ing business. But, access must be at competi- role as the center of the region’s growth. the airport in place, we can begin to truly tive fares. Expanding O’Hare will simply but- Spokesmen for the incumbent airlines balance growth, encourage infill develop- tress the monopolistic behavior of its air- claim that other airlines will not invest in ment and share the wealth of the region. lines. Such monopolistic practices currently the Third Chicago Airport; this is a tradi- are a major concern of Congress. tional response to discourage competition. THE PLANNING PROCESS: TWELVE YEARS OF THE DEVELOPMENT ALTERNATIVES Furthermore, the financing of any airport FINDINGS Aviation infrastructure must be ex- comes, principally, from its users. The Third The state agency responsible for planning panded—and expanded soon—to bring true Chicago Airport market comprises 16.5 per- the region’s transportation infrastructure, competition, lower fares and increased serv- cent of the region’s current air trip users, the Illinois Department of Transportation ice to the region. The alternatives are two: with a potential for contributing 20 percent. (IDOT), has been planning for the region’s adding runways to O’Hare; or building the They should not be left behind. Upfront air- aviation needs for the past twelve years. Third Chicago Airport. The two alternatives port development costs, for planning and en- IDOT, and its aviation consultants, are con- have far different consequences. The ques- gineering and land acquisition, traditionally vinced, without a doubt, that Chicago’s avia- tion is: have come from the federal government. In tion demands will more than double by 2020. ‘‘Will we continue to spend great outlays this ‘‘Year of Aviation’’, these funds are ex- The Federal Aviation Administration (FAA), of public-private funds on an area that is pected to increase by 50 percent; and Pas- the Airports Council International (ACI) and overwhelmed with both riches and the con- senger Facility Charges (PFC’s) are expected other industry groups have forecasted na- gestion those riches bring; or do we make to increase from $3 to $6. Currently, $1 in tional growth of similar magnitude. For a those investments in mature urban areas PFC’s at O’Hare yields $37 million per year. brief time, the City of Chicago agreed, as that are wanting for jobs and economic de- At the Full-Build forecast and $6 rate, the well. The Chicagoland Chamber study pre- velopment?’’ Third Chicago Airport will generate $100 mil- dicts a five-fold increase in international As is clearly documented by a recent lion in PFC’s annually by 2010. The FAA traffic. IDOT’s studies support the conten- Chamber study, O’Hare’s benefits are con- must provide the needed approvals and nor- tion that Chicago has an excellent oppor- ferred, primarily, on the west, north and mal up-front funding. A Third Airport devel- tunity to be the dominant North American northwest suburbs. Virtually all of O’Hare’s opment in the South Suburbs can provide so- hub for international flights, as well as its employees reside near it. In addition, it has cial and economic parity; and it can do it premier domestic hub, into the next century. garnered high concentrations of develop- with a hand-up rather than a hand-out. That point has been stated and documented ment. These concentrations, however, have THE ARGUMENT FOR SMART GROWTH WITH on many occasions by IDOT. The State’s led to congestion and increased land values. CHICAGO’S THIRD AIRPORT forecasts have been corroborated, independ- High land prices have forced businesses and ently, by a decade of observations. They are developers to plan future growth on the most Independent studies have demonstrated, reinforced in the latest study for the environmentally-sensitive fringes of the re- overwhelmingly, the need for expanded avia- Chicagoland Chamber of Commerce. It is gion and in areas farther removed from the tion capacity in the Chicago region. agreed, by all key interest groups, that the region’s central core. Demand will more than double by 2020. Needed is a Third Airport that can grow as Chicago region must increase its aviation ca- THE TWO SIDES OF THE COIN future demand dictates. pacity. While unprecedented growth takes place The need is now. The region is beginning to The region cannot double its aviation serv- around O’Hare, to the north, the three mil- experience the costs of capacity constraints. ice without building major new airport ca- lion residents of the region who reside south These are: pacity. O’Hare and Midway are now at capac- of McCormick Place are left with long trips Dampened aviation growth. ity. Enplanements already are being af- to the airport for flights and out of the run- Increased and non-competitive fares. fected, with growth limited to increases in ning for the many jobs it produces. The con- Lost jobs, conventions and other opportu- plane size or load factor; neither is expected sequences, for South Side/South Suburban nities. to increase further. The City’s $1.8 billion in- residents and the dwindling businesses that There are two alternatives for meeting the vestment in terminals will not increase ca- serve them, are the highest property tax region’s demand: pacity. But, the adverse impact on the re- rates in the State. Because jobs have dis- Adding runways at O’Hare—an area al- gion already is evident. Businesses and resi- appeared, residents have some of the longest ready well-served and suffering the effects of dents are witnessing major increases in fares trips to work in the nation. Because transit overdevelopment and congestion, or; in the Chicago region, according to IDOT, only to the Loop is convenient, recent job Building the Third Chicago Airport—in- the USDOT, the GAO and the FAA, itself. losses in that area, as well, (11,000 since 1991; vesting in an existing, mature part of the re- Perhaps in response to these obvious con- 25,000 since 1983) have compounded the job gion suffering losses due to changes in the straints, both the Chicagoland Chamber and searches of the South Side’s residents. For national/regional economies and lack of ac- the Commercial Club of Chicago have begun decades, regional planning agencies have cess to a major airport. to address the region’s aviation issues. The called for the development of moderate-in- Doubling traffic at O’Hare drives new de- Chamber calls for O’Hare expansion. The come housing near job concentrations. In- velopment farther away from the region’s ‘‘Metropolis 2020’’ study also recognizes the stead, let us bring the jobs to the residents. core—the Chicago Central Area—and its resi- need for additional aviation capacity, with a Recent public forums on the disparity of dents and businesses to the South. call for expansion of O’Hare and land bank- property tax rates in Cook County’s north It will encroach on environmentally-sen- ing of the Third Airport site in Peotone. This and south communities have led to the sitive areas. call for action comes none too soon. There South’s designation as the ‘‘Red Zone,’’ sig- It will compound noise, pollution and traf- are many indications that the Chicago re- nifying its concentration of highest property fic congestion; and impose these on hundreds gion has begun to suffer from capacity con- tax rates. This disparity was not always so. of thousands of additional residents. straints. It has occurred over the last three decades It will buttress monopolistic behavior by Ten years ago, Chicago was one of the na- and proliferated in the last two, as shown major airlines. Building the Third Chicago Airport is a tion’s least expensive regions to fly to, due below. The ‘‘Metropolis 2020’’ study addresses true urbanist’s dream. It solves multiple to its central location. Obviously, its loca- this disparity issue by calling for a sharing tion has not changed; however, now, due to problems with one investment. of revenues with the ‘‘lesser haves.’’ The It develops an environmentally-sensitive, O’Hare’s capacity overload and higher fares, more-responsive, enduring and—ultimately— new airport, that can provide increased ca- it is cheaper to fly from all around the coun- more-equitable solution is to provide the pacity for decades to come. try to many other cities than to Chicago. South Side with the economic opportunities It provides nearby, inexpensive land for de- For instance, according to data supplied by generated by the Third Chicago Airport. velopment. the airlines to the U.S. Department of Trans- Whether the region expands O’Hare or It brings jobs and development to mature portation, it is now cheaper to fly from builds a supplemental airport, OHare’s riches portions of the region. Green Bay to Las Vegas than from Green will remain and grow. It is currently enjoy- It allows three airport facilities to func- Bay to Chicago. It is cheaper to fly from Se- ing a $1 billion public investment to upgrade tion at optimal capacity. attle to Orlando than from Seattle to Chi- its terminals. Midway, as well, will continue It maintains the Chicago region as the na- cago. Something is wrong. Due to capacity to thrive, as the recipient of an $800-million- tion’s aviation capital. constraints, O’Hare’s airlines are over-charg- publicly-funded new terminal. However, this Because of planning already completed, ing their patrons by $750 million, annually $1.8 billion investment will not increase ca- the Third Chicago Airport can be built before (the difference between average fares for pacity. The initial infrastructure investment additional runways at O’Hare. large U.S. airports and those at O’Hare). This of $500 million ($2.5 billion through 2010) to Resources are available to build the air- fact is beginning to affect regional develop- build the Third Chicago Airport, will. And, it port. ment—especially conventions and tourism— will produce more than just added aviation Federal Funds for airport development will but, it also affects every major and start-up capacity. The Third Chicago Airport will increase by 50 percent.

VerDate 11-MAY-2000 06:50 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00075 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.013 pfrm09 PsN: H23PT1 H5166 CONGRESSIONAL RECORD — HOUSE July 23, 2002 The U.S. Congress, many businesses and continue to thrive, as the recipient of an Building the Third Chicago Airport is a consumers are demanding access to and $800-million-publicly-funded new terminal. true urbanist’s dream. It solves multiple through the Chicago area. However, in spite of this $1.8 billion invest- problems with one investment. Ultimately, the passenger pays through ment, the region’s capacity will not be in- It develops an environmentally-sensitive, Passenger Facility Charges. creased. The initial infrastructure invest- new airport, that can provide increased ca- ment of $500 million ($2.5 billion through pacity for decades to come. CHICAGO’S THIRD AIRPORT AND THE FUTURE OF 2010) to build the Third Chicago Airport, will It provides nearby, inexpensive land for de- THE CHICAGO REGION: AN OPPORTUNITY FOR increase it, And, it will produce more than velopment. SMART GROWTH, CONGESTION RELIEF AND just added aviation capacity. The Third Chi- It brings jobs and development to mature REGIONAL BALANCE cago Airport will provide 235,000 airport-re- portions of the region. AN EMERGING CONSENSUS lated jobs—in the right places by 2020. Addi- It allows three airport facilities to func- tional airport access jobs will benefit the en- tion at optimal capacity. Finally, after nearly nine years of intense tire region, In addition, it will reinforce the It maintains the Chicago region as the na- debate, there is near unanimous agreement City of Chicago’s role as the center of the re- tion’s aviation capital. on the need for additional airport capacity in gion’s growth. Furthermore, both businesses Because of planning already completed, the Chicago region. This is due, in part, to and residents of the airport’s environs want the Third Chicago Airport can be built before several inescapable facts: additional runways at O’Hare. Operations at O’Hare have been at a vir- it. Spokesmen for the incumbent airlines Residents and businesses nearby want it tual stall since 1994; hourly capacities have claim that other airlines will not invest in built. been reached; every day is Thanksgiving eve. Resources are available to build the Third The region’s enplanements have grown the Third Chicago Airport; this is a tradi- Airport. only as Midway has been able to take up a tional response to discourage competition. The U.S. Congress, many businesses and portion of the demand unaccommodated at Furthermore, the financing of any airport consumers are demanding access to and O’Hare; and as small markets are abandoned comes, principally, from its users. The Third through the Chicago area. in favor of large. Chicago Airport market comprises 16.6 per- Federal funds for airport development have International enplanements have grown at cent of the region’s current air trip users, increased by 50 percent. rates over 9 percent, annually, but at the ex- with a potential for contributing 20 percent. Ultimately, the passenger pays through pense of domestic. They should not be left behind. Upfront air- Passenger Facility Charges; PFC rates have Domestic enplanements at O’Hare have port development costs, for planning and en- increased from $3.00 to $4.50 per trip seg- grown by only 1.9 percent, annually, since gineering and land acquisition, traditionally ment. 1993; and actually have declined since 1998. have come from the federal government. In At full build, PFC’s will provide $75 mil- In 1998, Atlanta’s Hartsfield Airport sur- 2000, these funds increased by 50 percent; and lion, annually, by 2010. passed O’Hare as the nation’s busiest airport; Passenger Facility Charges (PFC’s) in- it remained first in 1999 and 2000. creased from $3 to $4.50. Currently, $1 in In 1999, the regional air system (O’Hare/ PFC’s at O’Hare yields $37 million per year. CLAIMING THE TIME IN OPPOSITION (JACKSON) Midway) nearly slipped to third place, be- The Third Airport market contributes nearly [You need to be on your feet when the bill is hind New York and Los Angeles. It is fore- one fifth of these funds for O’Hare. At the called up] Full-Build forecast and $4.50 rate, the Third cast by the FAA to fall to fourth place (be- [After the Speaker recognizes Mr. Lipiniski Chicago Airport will generate $75 million in hind Atlanta) by 2015. and Mr. Young] In 2000, O’Hare had the nations worst PFC’s annually by 2010. The FAA must pro- vide the needed approvals, and normal up- Mr. Speaker: Point of order Mr. Speaker. delays. May I inquire as to whether either gen- Now, nearly all those who claimed that front funding, A Third Airport development in the South Suburbs can provide social and tleman is opposed to the bill. As I under- Chicago could handle forecasted growth into stand it, the bill was ordered reported favor- the foreseeable future, are admitting that economic parity; and it can do it with a hand-up rather than a hand-out. ably by unanimous voice vote, and both of the gap between demand and the ability to these gentleman were present. Under the accommodate it are growing farther apart provisions of Rule XV, clause 1(c), debate on and at a faster pace. THE ARGUMENT FOR SMART GROWTH WITH CHICAGO’S THIRD AIRPORT a motion to suspend the rules is ‘‘one-half in 1998 studies by Booz-Allen & Hamilton favor and one-half in opposition, thereto.’’ Independent studies have demonstrated, (BAH) for the Chicagoland Chamber claim The notes to the Rule state where the time overwhelmingly, the need for expanded avia- that Chicago’s capture of international traf- in opposition is contested, ‘‘The Speaker will tion capacity in the Chicago region. fic—although considerable—is stifled. accord priority first on the basis of true op- Demand will more than double by 2020. BAH’s recent (2000) update for the Com- position...,’’ Existing airports are at capacity. mercial Club of Chicago shows an inter- Mr. Speaker, I will state for the record Needed, is a facility to grow as future de- national demand that is even higher than es- that I am in true opposition to this bill, I mand dictates. timated a year ago and higher than esti- therefore claim the time in opposition. mates made by IDOT. The need is now. The region is beginning to Overall forecasts undertaken by the City of experience the costs of capacity constraints. RULES OF THE HOUSE OF REPRESENTATIVES Chicago’s consultants—and recently made These are: public—are similar to the forecasts of IDOT, Travel delays, often the nations worst. Rule XV, clause 1 but with higher connecting volumes. Dampened aviation growth. (c) A motion that the House suspend the Both United and American Airlines have Increased and non-competitive fares. rules is debatable for 40 minutes, one-half in called for the construction of an added run- Lost jobs, businesses and other opportuni- favor of the motion and one-half in opposi- way at O’Hare. United funded the 1998 BAH ties. tion thereto. study. There are two alternatives for meeting the This provision (former clause 2 of rule Calls for an added runway also have come region’s demand; they are: XXVII) was adopted in 1880 (V, 6821). It was from the Chicagoland Chamber, the Commer- Adding runways at O’Hare—an area al- amended and redesignated from clause 3 to cial Club and the Chicago Tribune. ready well-served and suffering the effects of clause 2 of rule XXVII in the 102d Congress to When the State of Illinois Department of overdevelopment and congestion, or; conform to the repeal of the former clause 2, Transportation started planning for the re- Building the Third Chicago Airport—in- relating to the requirement of a second (H. gions Third Airport, in 1986, it was suggested vesting in an existing, mature part of the re- Res. 5, Jan. 3, 1991, p. 39). Before the House that the need would be evident by the turn of gion suffering losses due to changes in the recodified its rules in the 106th Congress, the century. Later, detailed forecasts docu- national/regional economies and lack of air- this provision was found in former clause 2 of mented an unmet demand of 7.1 million port access. rule XXVII. Former clause 2 consisted of enplanements, by 2001. We have nearly Doubling traffic at O’Hare forces job devel- paragraph (b) and another provision cur- reached that first milestone and the evi- opment farther away from the region’s rently found in clause 1(a) of rule XIX per- dence of unmet demand, indeed, is great. Re- core—the Chicago Central Area—and from mitting 40 minutes debate on an otherwise cent studies indicate that, by 2001, the Chi- the South Side. debatable question on which the previous cago region will have lost or foregone a large It will require additional land and struc- question has been ordered without debate (H. portion (5.1 million) of the 7.1 million ture acquisition. Res. 5, Jan. 6, 1999, p ——). Before the adop- enplanement forecast for the Third Airport. It will encroach on environmentally-sen- tion of this provision in 1880 (V, 6821) the mo- The question no longer is whether we sitive areas. tion to suspend the rules was not debatable should add capacity to the region but, rath- It will compound noise, pollution and traf- (V, 5405, 6820). The 40 minutes of debate is di- er, where we should add it. fic congestion; and impose these on hundreds vided between the mover and a Member op- Whether the region expands O’Hare or of thousands of additional residents. posed to the bill, unless it develops that the builds a supplemental airport, O’Hare’s It will buttress monopolistic behavior by mover is opposed to the bill, in which event riches will remain and grow. It is currently major airlines. some Member in favor is recognized for de- enjoying a $1 billion public investment to It will take 10–15 years to achieve capacity bate (VIII, 3416). Where recognition for the 20 upgrade its terminals. Midway, as well, will increases. minutes in opposition is contested, the

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00076 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.016 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5167 Speaker will accord priority first on the Chicago’s North Side and the northwest sub- truding on a State’s sovereignty could not be basis of true opposition, then on the basis of urbs. Midway Airport is the economic mag- avoided by claiming that congressional au- committee membership, and only then on net that provides jobs and economic security thority was: (a) pursuant to the Commerce the basis of party affiliation, the latter pref- for Chicago’s southwest side. There is no Power—it will create 195,000 jobs and $19 bil- erence inuring to the minority party (VIII, similar economic engine for Chicago’s South lion in economic activity; (b) the ‘‘necessary 3415; Nov. 18, 1991, p. 32510). The Chair will Side and south suburbs. O’Hare expansion and proper’’ clause of the Constitution— not examine the degree of opposition to the puts 195,000 new jobs and $19 billion of eco- there’s an aviation capacity crisis; or (c) motion by a member of the committee who nomic activity in an area that already has that the federal law ‘‘preempted’’ state law seeks the time in opposition (Aug. 3, 1999, p. an over-abundance. For example, the biggest under the Supremacy Clause—that Congress ——). When the mover and the opponent di- beneficiary of O’Hare is Elk Grove Village, a can use its power to solve the impasses by vide their time with others, the practice as city of 35,000 people where over 100,000 people overriding the state. In short, all of the ar- to alternation of recognitions is not insisted come to work everyday—three jobs for every guments the Daley/Ryan forces have been on so rigidly as in other debate (II, 1442). De- one person. The greatest beneficiary of using are unconstitutional. bate should be confined to the object of the O’Hare, Mayor Craig Johnson of Elk Grove CONCLUSION motion and may not range to the merits of Village, is one of the biggest supporters of If you care anything about the institu- a bill not scheduled for suspension on that Peotone. By contrast, some communities in tional integrity of the House, you should day (Nov. 23, 1991, p. 34189). my district have 60 people for every one job. vote against this bill because it’s inappropri- This paragraph formerly included a provi- Finally, it just so happens that the areas ately on the alleged ‘‘non-controversial’’ sion dealing with the Speaker’s authority to where O’Hare and Midway Airports are lo- Suspension Calendar. If you think you’re postpone further proceedings on motions to cated are primarily where whites live. Afri- voting to build O’Hare and Peotone simulta- suspend the rules and pass bills or resolu- can Americans live primarily south and in neously, you’re not—and you should vote tions. It was added in the 93d Congress (H. the south suburbs. But African American against this bill. If you think you’re solving Res. 998, Apr. 9, 1974, pp. 10195–99), amended families need economically stable families the air capacity crisis in Chicago, you’re in the 95th Congress (H. Res. 5, Jan. 4, 1977, and communities, who have a future, and can not—vote against H.R. 3479. If you think pp. 53–70), and amended further in the 96th send their children to college too. We need you’re voting for a morally sound, and an Congress (II. Res. 5, Jan. 15, 1979, pp. 7–16). It greater economic balance in the Chicago economically and racially just bill, you’re was deleted entirely in the 97th Congress (H. Metropolitan area so that all of the people not—vote no. If you think you’re protecting Res 5, Jan. 5, 1981, pp. 98–113) when all of the have jobs and economic security. the environment and consumers, you’re not— Speaker’s postponing authorities were con- 5. PEOTONE IS ENVIRONMENTALLY CLEANER again you should be against this bill. If you solidated into clause 5 of rule I (current Mr. Lipinski says fifteen environmental think H.R. 3479 is constitutional, it’s not— clause 8 of rule XX). groups, including the Sierra Club, support and both Democrats and Republicans should the language in this bill. He’s implying vote against this bill. Vote ‘‘No’’ on H.R. OPENING STATEMENT OPPOSING H.R. 3479 they’ve endorsed it, but he knows better. 3479! There are many reasons why I oppose H.R. They’ve not endorsed it. I also asked Mr. Li- 3479. 1 want to share some reasons why you pinski to supply me with the names of the ECONOMIC IMBALANCE too should be opposed to the National Avia- other environmental groups he says support tion Capacity Expansion Act. Make no mistake. A ‘‘YES’’ vote on this the language in this bill—and he’s failed to bill today is a vote to widen and reinforce 1. RESPECT FOR THE INSTITUTION OF THE HOUSE do so. O’Hare is already the largest polluter the economic and racial divide in Chicago. The Suspension Calendar is reserved for in the Chicago area. Doubling the number of For too long, the Chicago area has been NON-CONTROVERSIAL bills. This is a flights into the 7,000 acres that houses fractured—divided in two by geography, op- HIGHLY CONTROVERSIAL bill. This should O’Hare means pollution levels will explode. portunity and race. offend every House traditionalist and insti- A recent study found there was an excess of One Chicago—the North Side and North- tutionalist. It violates the integrity of the 800 new incidences of cancer each year—over west suburbs—is exploding with growth. established, respected, and utilitarian proc- and above what would be expected based on With O’Hare having replaced the Downtown esses set up by the House of Representatives. the state’s average—in eight northeastern Loop as Chicago’s economic center, jobs and Even if you agree on the substance, you communities downwind of O’Hare. Peotone’s investment located near the airport have in- should be against the process. H.R. 3479 24,000 acre site has a built-in environmental creased dramatically. Today, some North should be a ‘‘stand-alone’’ bill that is fully safety zone. West suburbs, which are primarily white and debated before the House—with the possi- 6. THIS BILL IS PRECEDENT SETTING affluent, have 3 jobs for every person. This bility of adding amendments to improve the For economic reasons, San Francisco Chicago boasts the best schools, the least bill. It should not be on the Suspension Cal- wanted to add new runways, but there were crime and the lowest property tax rates. endar. environmental groups that objected. In At- In sharp contrast, the other Chicago—the 2. H.R. 3479 DOES NOT REFLECT THE AGREEMENT lanta a few years back, Fulton County com- South Side and south suburbs—is slumping BETWEEN MAYOR DALEY AND GOVERNOR RYAN missioners went to battle to stop a proposed in depression. Today, in some South Side Most of you believe you are voting to cod- sixth runway at Hartsfield. In New York, a neighborhoods and south suburbs, which are ify an agreement between Chicago Mayor controversy sprung up over a 460-foot safety predominantly Black and poorer, there are 60 Richard M. Daley and Illinois Governor overrun at LaGuardia because objections people for every one job. Jobs and factories George Ryan. But this bill does not reflect were raised by residents. Mayor James Hahn have been replaced with unemployment, wel- that deal. Their agreement promised ‘‘pri- made a campaign pledge opposing expansion fare and crime; local property values have ority status’’ for a south suburban airport in at LAX in Los Angeles, but a pro-expansion slumped; and local school funding has with- Peotone and O’Hare expansion. This bill pro- coalition is forming. H.R. 3479 sets a prece- ered as prison construction has blossomed. vides for O’Hare expansion, but does not give dent that if these controversies can’t be In this Chicago, the lack of jobs and invest- ‘‘priority status’’ to Peotone. worked out locally, they can always be ment is disrupting lives, corrupting children 3. IF THE ISSUE IS RESOLVING THE AIR CAPACITY brought to Congress and passed by a suspen- and destroying communities. Look at this Rand McNally easy finder CRISIS, THIS BILL IS NOT THE MOST EFFECTIVE sion of the rules without debate or amend- map of Chicago. It includes O’Hare, but OR EFFICIENT WAY TO SOLVE THAT PROBLEM ments. This is like putting the Inglewood Police in charge of homeland security! doesn’t include much of the south side and Both sides agree there is an air capacity none of the south suburbs. It’s as if Chicago 7. PEOTONE WOULD PROVIDE MORE COMPETITION crisis at O’Hare. The disagreement comes ends at the Museum of Science and Industry. AND LOWER AIRFARES over how best to resolve it. A new south sub- This tale of two cities is a classic and per- urban airport in Peotone offers a faster, The O’Hare expansion plan is an anti-con- sistent divide for which Chicago, although cheaper, cleaner, safer, and more permanent sumer measure. Two airlines—American and not unique, has long been infamous. But solution. What do I mean? I mean after United—control roughly 90 percent of the rather than bridging this gap and uniting O’Hare expansion is completed—if air travel flights in and out of O’Hare. It’s a duopoly. these two Chicagos with a third airport, this expands as projected—we’ll still be in the And due to a lack of competition, fares at bill further concentrates all aviation and same capacity crisis that we’re in today. So O’Hare continue climbing higher and faster economic growth in the already over-satu- why spend more money, take longer, in- than the national average. Six years ago, rated corridor from Downtown Chicago to crease environmental problems, put the fly- O’Hare fares were 21 percent above the na- O’Hare. Meanwhile, the South Side and be- ing public at greater risk, support a tem- tional average. Today, they are 33 percent yond, get nothing. porary solution, and increase the economic above the national average and cost con- This imbalance now poses a problem for and racial divide in Chicago, when there is a sumers an extra $1 billion annually. aviation expansion. The massive develop- better way of resolving the current aviation 8. THE SUPREME COURT WILL LIKELY FIND H.R. ment surrounding O’Hare makes airport ex- capacity crisis? 3479 UNCONSTITUTIONAL pansion there costly, time-consuming, dif- 4. A NEW SOUTH SUBURBAN AIRPORT IS A MORE The U.S. Supreme Court stated in Printz v. ficult and intrusive. Congestion often brings ECONOMICALLY JUST SOLUTION United States (1997) that ‘‘dual sovereignty’’ area expressways to a halt; O’Hare is the O’Hare Airport is the economic magnet is incontestable. It emphasized that the con- state’s largest polluter; and safety is a grow- that provides jobs and economic security for stitutional structural barrier to Congress in- ing concern because O’Hare is surrounded by

VerDate 11-MAY-2000 06:50 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00077 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.021 pfrm09 PsN: H23PT1 H5168 CONGRESSIONAL RECORD — HOUSE July 23, 2002 residential neighborhoods. Expansion would policy and regular procedure, but raw poli- law requiring approval of airport construc- only compound these problems. tics and brute political power. This should tion and expansion—approval that requires The question we must ask ourselves is: Do not be on the Suspension Calendar! the blessing of the state legislature. we continue to invest in an area that is over- This bill converts the concept of dual sov- whelmed with riches and congestion or do we H.R. 3479 DOES NOT REFLECT THE DALEY/ ereignty into tri-sovereignty by going be- invest in areas that desperately need jobs RYAN AGREEMENT yond states’ rights to city rights. It gives and economic development? This bill has been touted as codifying a se- Mayor Daley (and the other local officials in I brought with me just some of the many cret deal struck between Mayor Richard M. charge of the 68 largest airports in the coun- books that document the damaging effects of Daley and Governor George Ryan—a deal try) a greater say over national aviation pol- Chicago’s persistent disparities between without public input, where nobody has seen icy than the federal government or the fifty north and south. the actual plans, and where total costs are governors. If this bill passes, it would invite congres- Let me read a passage from just one of still unknown. But this bill is not that secret sional interference on other important avia- these, titled ‘‘When Work Disappears,’’ by deal. tion issues, leading to a potential rash of de- noted University of Chicago and Harvard The Chicago Tribune reported on December mands from various localities for priority University scholar William Julius Wilson. 6, 2001, that Mayor Daley and Governor Ryan Professor Wilson writes, ‘‘Over the last two standing for airport funding, bypassing rea- had reached ‘‘a deal that would build new sonable administrative planning, and the en- decades, 60 percent of the new jobs created in runways at O’Hare International Airport. the Chicago metropolitan area have been lo- vironmental review process. Airport expan- . . . The deal also calls for construction of a sion issues are bubbling up everywhere—Bos- cated in the northwest suburbs of Cook and new airport near Peotone Ryan has wanted. DuPage County (surrounding O’Hare). Afri- ton Logan’s, New York’s LaGuardia, Cleve- Daley, who has raised concerns that Peotone land’s Hopkins, Atlanta’s Hartsfield, San can-Americans constitute less than 2 percent would compete with O’Hare, agreed to work of the population in these areas.’’ He con- Francisco’s SFO, and Los Angeles’ LAX. Will with the governor to seek federal funds for your state legislature be next to lose its cluded, ‘‘The metropolitan black poor are be- construction of the third airport.’’ coming increasingly isolated.’’ power to decide local airport matters? In a December 7th AP story, Senator DICK Indeed, H.R. 3479 stands federalism on its Let’s not add to this hefty volume. Let’s DURBIN said, ‘‘O’Hare and Peotone are not head. It makes about as much sense as put- not continue to perpetuate and exploit this mutually exclusive. It is not an ‘either-or’ ting your local police department in charge divide. Let’s relegate these books to the his- proposition. We need both and we will have of homeland security. tory section and begin our own new chapter both. . . . On Wednesday, Ryan and Daley of balanced economic growth and justice in reached an historic agreement that would RONALD D. ROTUNDA, UNIVERSITY OF Chicago. I urge a ‘‘no’’ vote on this bill. modernize O’Hare International Airport, in- ILLINOIS COLLEGE OF LAW, cluding east-west parallel runways; con- Champaign, IL, March 1, 2002. SUSPENSION CALENDAR ARGUMENTS TO BE struct a south suburban airport near Re: Proposed Federal legislation granting AGAINST H.R. 3479 Peotone. . . . Durbin said construction of new powers to the City of Chicago. The Suspension Calendar is a procedure Peotone will provide a huge economic boost Hon. JESSE L. JACKSON, Jr., that allows House members to vote on non- to the south suburbs and help provide travel U.S. House of Representatives, controversial bills—like paying tribute to access to fast-growing areas like Will Coun- Washington, DC. Ted Williams. ty.’’ DEAR CONGRESSMAN JACKSON: As you know, Putting H.R. 3479 on the Suspension Cal- The Chicago Tribune, in a December 11, I serve as the Albert E. Jenner Professor of endar, for House traditionalists and institu- 2001, editorial, said, ‘‘Thanks to Daley and Law at the University of Illinois Law School. tionalists, ought to strike you as violating Ryan, the gridlock may finally be broken. I have authored a leading course book on the integrity of the established, respected, They have a sound plan. The parameters of it Constitutional Law. In addition, I co-author, and utilitarian rules set up in the House. It have been before the public for five months. along with my colleague John Nowak, the is inconsistent with the institutional tradi- It answers the nightmare of flight delays at widely-used multi-volume Treatise on Con- tions of this body. This is an abuse of power! O’Hare and gives the south suburbs their stitutional Law, published by West Pub- It is highly unusual for a bill defeated best chance to build an airport at Peotone.’’ lishing Company. In addition to my books, I under suspension of the rules to ever be Despite these reports, and what may be have taught and researched in the area of brought back in the same manner—not to said here on the floor today, this bill does Constitutional Law since 1974. mention a week later. In the entire 106th not codify a key part of the agreement I have been asked to give my opinion on Congress, no bill defeated on the Suspension reached by Mayor Daley and Governor Ryan. the constitutionality of proposed federal leg- Calendar was brought up again. Six Suspen- Mr. Speaker, this bill does not make con- islation entitled ‘‘National Aviation Capac- sion bills have failed in the 107th Congress— struction of a south suburban airport near ity Expansion Act,’’ identical versions of all six during the second session. Two of the Peotone a federal priority. which have been introduced in both the Sen- six were later passed as stand-alone bills in While it’s coming to light that corporate ate and the House of Representatives by Sen- regular order. Not one of the six was brought chieftains are cooking books, fudging num- ator DURBIN and Congressman LIPINSKI (S. up again under suspension of the rules. This bers, and misrepresenting the facts to the 1786, H.R. 3479), hereafter the ‘‘Durbin Lipin- is an arrogant use of power! public, it is critical that this body, the peo- ski legislation.’’ H.R. 3479 should be a ‘‘stand-alone’’ bill ples’ House, not do the same. The Durbin-Lipinski legislation seeks to enact Congressional approval of a proposal that is fully debated before the House—with to construct a major alteration of O’Hare the possibility of adding amendments to im- 10TH AMENDMENT ARGUMENTS AGAINST H.R. Airport in Chicago. While this legislation fo- prove the bill. 3479 cuses on Chicago and the State of Illinois, Even if you are with this bill on substance Even if H.R. 3479 becomes law, a federal the issues raised by the legislation have seri- you should be against it on process. This court is likely to find it unconstitutional ous constitutional implications for all 50 makes a mockery of the suspension of the under the 10th Amendment, which gives cer- States. rules, which is reserved for noncontroversial tain powers exclusively to the States, includ- There are two key components of the legis- bills. ing the power to build and alter airports. lation that have been the subject of my ex- This does not have the full support of the The U.S. Supreme Court stated in Printz v. amination. Illinois delegation. In the other body, one Il- United States (1997) that ‘‘dual sovereignty’’ First Section 3(a)(3) attempts to give the linois senator staunchly opposes it, and one is incontestable. City of Chicago (a political subdivision and strongly supports it. It emphasized that the constitutional instrumentality of the State of Illinois) the This bill is far from being non-controver- structural barrier to Congress intruding on a legal power and authority to build a pro- sial. It is controversial for the Illinois dele- State’s sovereignty could not be avoided by posed major alteration of O’Hare even gation, controversial for the community sur- claiming that congressional authority was: though state law does not authorize Chicago round O’Hare, controversial for the South (a) pursuant to the Commerce Power—it to build the alteration without first receiv- Side and south suburbs, and controversial will create 195,000 jobs and $19 billion in eco- ing a permit from the State of Illinois. Chi- throughout the entire state. The Speaker’s nomic activity; cago, as a legal entity, is entirely a creation participation and the lobbying effort of the (b) the ‘‘necessary and proper’’ clause of of state—not federal law—and Chicago’s au- last few days underscores the controversy. It the Constitution—there’s an aviation capac- thority to build airports is essentially an ex- does not conceal, but reveals that this is a ity crisis; or ercise of state law power delegated to Chi- controversial issue. It does not obscure it, it (c) that the federal law ‘‘preempted’’ state cago by the Illinois General Assembly. underscores it. It’s so controversial that it’s law under the Supremacy Clause—that Con- The requirement that Chicago first obtain on the Suspension Calendar in order to limit gress can use its power to solve the impasses a state permit is an integral and essential discussion and debate, and prevent amend- by overriding the state. element of that delegation of state power. ments. In short, all of the arguments for codifying The U.S. Constitution prohibits Congress (1) Today’s vote is not about the most effi- the Daley/Ryan deal in federal law are un- from invading and commandeering the exer- cient and effective way to resolve the avia- constitutional. cise of state power to build airports, and (2) tion capacity crisis at Chicago’s O’Hare It sets a dangerous precedent by allowing from changing the allocation of state-cre- International Airport. It is not about sound the federal government to pre-empt state ated power between the State of Illinois and

VerDate 11-MAY-2000 06:50 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00078 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.047 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5169 its political subdivisions. The U.S. Constitu- airports) is in reality a power of the State— state permit required by state statute. Thus, tion, in short, prohibits Congress from essen- not inherent in the existence of the political Chicago has no authority under state law to tially rewriting state law dealing with the subdivision. For the political subdivision to enter into an agreement with the FAA Ad- delegation of state power by eliminating the have the legal authority to exercise that ministrator to have the runway redesign conditions, restrictions, and prohibitions im- state power, there must be a delegation of plan constructed by the federal government posed by the Illinois General Assembly on that state power by the State to the political because Chicago has not received approval that delegation. These constitutional re- subdivision. Further, it is axiomatic that from the State of Illinois under the Illinois strictions on Congress’ power—which pro- any such delegation of state power to a polit- Aeronautics Act—a specific condition and hibit Congress from requiring states to ical subdivision must be exercised in accord- prohibition of the delegation of state power change their state laws governing cities—are ance with the conditions, limitations, and (to build airports) to Chicago by the Illinois often termed Tenth Amendment restrictions. prohibitions accompanying the State’s dele- General Assembly. Just as Chicago (a cre- Similarly, the provisions of Section 3(f) of gation of that power. ation and instrumentality of the State of Il- the proposed Durbin-Lipinski legislation are 5. In the case of airport construction, the linois) has no power or authority under state necessarily conditioned upon the existence Illinois General Assembly has enacted a stat- law (absent compliance with the Illinois Aer- of state law authority of Chicago to enter ute that delegated to Chicago (and other mu- onautics Act) to enter into an agreement for into agreements for a third party (the FAA) nicipalities) the state law power to construct the FAA to construct the runway redesign to alter O’Hare without first obtaining a per- airports explicitly and specifically subject to plan, Chicago also has no power or authority mit from the State of Illinois. But Chicago certain limits and conditions that the Gen- (absent compliance with the Illinois Aero- has no state law authority (under the delega- eral Assembly imposed. One basic require- nautics Act) to enter into the other agree- tion of state power to build and alter air- ment is that Chicago must first comply with ments provided for in Section 3(f)(1)(B) of the ports) to enter into an agreement to engage all of the requirements of the Illinois Aero- Durbin-Lipinski legislation. Again, Section in a massive alteration of O’Hare without a nautics Act—including the requirement that 3(f) is an attempt to have Congress use the state permit. Congress cannot confer powers Chicago first receive a permit (a certificate Commerce power to conscript state instru- on a political subdivision of a State where of approval) from the State of Illinois. The mentalities as its agents. Instead of Congress the State has expressly limited its delega- Illinois General Assembly has expressly pro- regulating interstate commerce directly tion of state power to build airports to re- vided that municipal construction or alter- (which both New York v. United States and quire a state permit. Congress has no con- ation of an airport without such a state per- Printz allow), the Durbin-Lipinski legisla- stitutional authority to create powers in an mit is unlawful and ultra vires. tion seeks to regulate how the State regu- instrumentality of State law (Chicago) when 6. Section 3(a)(3) of the Durbin-Lipinski lates one of its cities (which both New York the very authority and power of Chicago to legislation expressly authorizes Chicago to v. United States and Printz do not allow). undertake the actions proposed by Congress proceed with the ‘‘runway redesign plan’’ (a 8. The Durbin-Lipinski legislation is not a depends on compliance with—and is contrary multi-billion dollar modification of O’Hare) law of ‘‘general application’’. There is a line to—the mandates of the Illinois General As- without regard to the clear delegation limi- of Supreme Court decisions which allow Con- sembly tations and prohibitions imposed by the Illi- gress to use the Commerce Power to impose For the reasons discussed below, it is my nois General Assembly on the state statu- obligations on the States when the obliga- opinion that the proposed legislation is un- tory delegation to Chicago of the state law tions imposed on the States are part of laws constitutional. power to construct airports. Illinois law ex- which are ‘‘generally applicable’’ i.e., that SUMMARY OF ANALYSIS plicitly says Chicago has no state law au- impose obligations on the States and on pri- The following is a summary of my anal- thority to build or alter airports without vate parties alike. See e.g., Reno v. Condon, ysis: first complying with the Illinois Aeronautics 528 U.S. 141 (2000) (federal rule protecting pri- 1. Under the governing United States Su- Act, including the state permitting require- vacy of drivers’ records upheld because they preme Court decisions of New York v. United ments of 47 of that Act. Even though Chicago do not apply solely to the State); South States and Printz v. United States, 6 which (a political creation and instrumentality of Carolina v. Baker, 485 U.S. 505 (1988) (state are discussed below, the proposed legislation the State of Illinois) has no power to build or bond interest not immune from nondiscrim- is not supported by any enumerated power modify airports (a state law power) unless inatory federal income tax); Garcia v. San and thus violates the limitations of the Chicago obtains State approval, Section 3(a) Antonio Metropolitan Transit Authority, 469 Tenth Amendment of the Constitution. In (3) purports to infuse Chicago (which has no U.S. 528, (1985) (law of general applicability, these decisions, the Supreme Court held that legal existence independent of state law) binding on States and private parties, legislation passed by Congress, purportedly with a federal power to build airports and to upheld). But these cases have no application relying on its exercise of the Commerce disregard Chicago’s fundamental lack of where, as here and in New York and Printz, Power (nuclear waste legislation in New power under state law to undertake such ac- the Congressional statute is not one of gen- York and gun control legislation in Printz) tions (absent compliance with state law). eral application but is specifically directed was unconstitutional because the federal Like New York v. United States and Printz at the States to use state law instrumental- laws essentially commandeered state law v. United States the proposed Durbin-Lipin- ities as tools to implement federal policy. powers of the States as instrumentalities of ski legislation involves Congress attempting Here the Durbin-Lipinski legislation is dou- federal policy. to use a legal instrumentality of a State bly unconstitutional, because it does not 2. The same constitutional flaws afflict the (i.e., the state power to build airports exer- apply to private parties or even to all States proposed Durbin-Lipinski legislation. Cen- cised through its delegated state-created in- but only to one State (Illinois) and its rela- tral to the Durbin-Lipinski legislation are strumentality, the city of Chicago) as an in- tionship to one city (Chicago). The Durbin- two provisions [sections 3(a)(3) and 3(f)] that strument of federal power. As the Supreme Lipinski legislation proposes to use Chicago purport to empower or authorize Chicago (a Court held in New York and Printz, the (an instrumentality of state power whose au- political instrumentality of the State of Illi- Tenth Amendment—and the structure of thority to construct airports is an exercise nois, and thus a city that has no authority ‘‘dual sovereignty’’ it represents under our of state power expressly limited and condi- or even legal existence independent of state constitutional structure of federalism—pro- tioned on the limits and prohibitions im- law) to undertake actions for which Chicago hibits the federal government from using the posed on that delegation by the Illinois legis- has not received any delegation of authority Commerce power to conscript state instru- lature) as a federal instrumentality to im- from the State of Illinois and that, in fact, mentalities as its agents. plement federal policy. Congress is comman- are directly prohibited by Illinois law when 7. Similar problems articulated in New deering a state instrumentality of a single the conditions and limitations of the State York and Printz fatally afflict Section 3(f) of State (Illinois) against the express statutory delegation of authority have not been satis- the proposed Durbin-Lipinski legislation. will of the Illinois Legislature, which has re- fied. That section provides that, if (for whatever fused to confer on Chicago (an instrumen- 3. Under Illinois law, Chicago (like any reason) construction of the ‘‘runway design tality of the State) the state law power and other political subdivision of a State) has no plan’’ is not underway by July 1, 2004, then authority to build airports unless Chicago authority to undertake any activity (includ- the FAA Administrator (a federal agency) first obtains a permit from the State of Illi- ing constructing airports) without a grant of shall construct the ‘‘runway redesign plan’’ nois. This is an unconstitutional use of the state authority from the State of Illinois. as a ‘‘Federal Project’’. But, Section 3(f)(1) Commerce Power under the holdings New Under Illinois law, actions taken by political then provides that this ‘‘federal project’’ York and Printz and does not fall within the subdivisions of the State (e.g., Chicago) must obtain several agreements and under- ‘‘general applicability’’ line of cases such as without a grant of authority from the State, takings from Chicago—agreements and un- Reno v. Condon, South Carolina v. Baker, or actions taken by a political subdivision in dertakings that are controlled by state law, and Garcia. violation of the conditions, limitations or which limits Chicago’s authority to enter ANALYSIS prohibitions imposed by the State in dele- into such agreements or accept such under- Before discussing any further the specific gating the state authority, are plainly ultra takings. Chicago has no authority under the provisions of the Durbin-Lipinski legisla- vires, illegal, and unenforceable. The City of state law (which confers upon Chicago the tion, let us review some important back- Chicago is a creature of state law, not fed- state power to construct airports) to enter ground law. eral law. into agreements with any third party (be it A. The Basic Legal Principles. 4. The power exercised by any state polit- the United States or a private party) to Cities are Creatures of the States and ical subdivision (e.g., the power to construct make alterations of an airport without the State Law—Not Instrumentalities of Federal

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00079 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.050 pfrm09 PsN: H23PT1 H5170 CONGRESSIONAL RECORD — HOUSE July 23, 2002 Power. Normally, this controversy sur- expansion. This project is called a ‘‘Federal not authorize the Federal Government to rounding the proposed expansion of O’Hare project,’’ but Chicago must agree to con- conscript state governments as its agents. Airport would be left to the state political struct the ‘‘runway redesign as a Federal ‘‘Where a federal interest is sufficiently process. Under Illinois law, the cities in this Project,’’ and Chicago provides the necessary strong to cause Congress to legislate, it must state have only the power that the State land, easements, etc., ‘‘without cost to the do so directly; it may not conscript state Constitution or the legislature grants to United States.’’ governments as its agents.’’ The proposed them, subject to whatever limits the State What this proposed legislation does is au- Durbin-Lipinski legislation will do exactly imposes. This legal principle has long been thorize the City of Chicago to implement an what New York prohibits: it will conscript settled. airport expansion approved by the Adminis- the City of Chicago as its agent and interfere Nearly a century ago, the U.S. Supreme trator of the Federal Aviation Administra- with the relationship between the State of Court, in Hunter v. City of Pittsburgh, 207 tion. But, under state law, Chicago cannot Illinois and the entity it created, the City of U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907) held expand O’Hare because it does not have the Chicago. that, under the U.S. Constitution, cities are required state permit. New York invalidated a legislative provi- merely creatures of the State and have only There is no doubt that the O’Hare Airport sion that is strikingly similar to the pro- those powers that the State decides to give is a means of interstate commerce, and Con- posed federal Durbin-Lipinski legislation. them, subject to whatever limits the States gress may certainly impose various rules and The Court, in the New York case, considered choose to impose: regulations on airports, including O’Hare. the Low-Level Radioactive Waste Policy This court has many times had occasion to Congress, for example, may decide to require Amendments Act of 1985. Congress was con- airport security and require that the secu- consider and decide the nature of municipal cerned with a shortage of disposal sites for rity agents be federal employees. Or, Con- corporations, their rights and duties, and the low level radioactive waste. The transfer of gress could provide that it would build and rights of their citizens and creditors. [Cita- waste from one State to another is obviously take over the O’Hare Airport and construct tions omitted.] It would be unnecessary and interstate commerce. Congress, in order to expansion if the State of Illinois refused to unprofitable to analyze these decisions or deal with the waste disposal problem, crafted do so. quote from the opinions rendered. We think a complex statute with three parts, only one the following principles have been estab- Congress may also use its spending power to take land by eminent domain and then of which was unconstitutional. There were a lished by them and have become settled doc- series of monetary incentives, which the trines of this court, to be acted upon wher- construct or expand an airport, no matter what the state law provides. The limits on Court unanimously upheld under Congress’ ever they are applicable. Municipal corpora- broad spending powers. Congress also author- tions are political subdivisions of the state, the spending clause are few. But, the proposed law does not take such ized States that adopted radioactive waste created as convenient agencies for exercising alternatives. It does not impose regulations and storage disposal guidelines to bar waste such of the governmental powers of the state on airports in general, nor does it exercise imported from States that had not adopted as may be [e]ntrusted to them. . . . The the very broad federal spending power. Nor certain storage and disposal programs. The number, nature, and duration of the powers does the proposed law authorize the federal Court, again unanimously, relied on long- conferred upon these corporations and the government take over ownership and control settled precedent that approves of Congress territory over which they shall be exercised of O’Hare Airport. Instead, it seeks to use an creating such trade barriers in interstate rests in the absolute discretion of the state. instrumentality of state power (i.e., the commerce. . . . The state, therefore, at its pleasure, state law power to build airports as dele- Then the Court turned to the ‘‘take title’’ may modify or withdraw all such powers, gated to a state instrumentality, the city of provisions and held (six to three) that they may take without compensation such prop- Chicago) as an exercise of federal power. were unconstitutional. The ‘‘take title’’ pro- erty, hold it itself, or vest it in other agen- The proposed federal law is stating that it vision in effect required a State to enact cer- cies, expand or contract the territorial area, is creating a federal authorization or em- tain regulations and, if the State did not do unite the whole or a part of it with another powerment to the City of Chicago to do that so, it must (upon the request of the waste’s municipality, repeal the charter and destroy which state law provides that Chicago may generator or owner), take title to and posses- the corporation. All this may be done, condi- not do—expand O’Hare Airport without com- sion of the waste and become liable for all tionally or unconditionally, with or without plying with state laws that create the City damages suffered by the generator or owner the consent of the citizens, or even against of Chicago and delegate to it certain limited as a result of the State’s failure to promptly their protest. In all these respects the state powers that can be exercised only if within take possession. is supreme, and its legislative body, con- the limits of the authorizing state legisla- The Court explained that Congress could, if forming its action to the state Constitution, tion. it wished, preempt entirely state regulation may do as it will, unrestrained by any provi- NEW YORK V. UNITED STATES in this area and take over the radioactive sion of the Constitution of the United The proposed federal law is very similar to waste problem. But Congress could not order States. the States to change their regulations in Hunter held that a State that simply takes the law that the Supreme Court invalidated this area. Congress lacks the power, under the property of municipalities without their a decade ago in New York v. United States. the Constitution, to regulate the State’s reg- consent and without just compensation did The law that New York invalidated singled ulation of interstate commerce. That is what not violate due process. While Hunter is an out states for special legislation and regu- the proposed federal O–Hare Airport bill will old case, it still is the law, and the Seventh lated the states’ regulation of interstate do: it will regulate the State’s regulation of Circuit recently quoted with approval the commerce. The proposed Durbin-Lipinski interstate commerce by telling the State language reprinted here. legislation singles out a State (Illinois) for that it must act as if the City of Chicago has The Illinois Aeronautics Act Expressly special legislation and regulates that State’s complied with the Illinois Aeronautics Act Limits Chicago’s Power to Build and Alter. regulation of interstate commerce dealing and other state rules. The State of Illinois has delegated to Chi- with O’Hare Airport. cago the power to build and alter airports. While the law in this area has shifted a bit In a nutshell, Congress cannot constitu- But that power is expressly limited by the over the last few decades, it is now clear that tionally commandeer the legislative or exec- requirement that Chicago must comply with Congress can use the Interstate Commerce utive branches. The Court pointed out that the Illinois Aeronautics Act. And the Illinois Clause to impose various burdens on States this commandeering is not only unconstitu- Aeronautics Act provides that Chicago has as long as those laws are ‘‘generally applica- tional (because nothing in our Constitution no power to make ‘‘any alteration’’ to an ble.’’ The federal law may not single out the authorizes it) but also bad policy, because airport unless it first obtains a permit, a State for special burdens. For example, Con- federal commandeering serves to muddy re- ‘‘certificate of approval,’’ from the State of gress may impose a minimum wage on state sponsibility, undermine political account- Illinois. Finally, Chicago has not obtained employees in, or affecting, interstate com- ability, and increase federal power. this certificate of approval. That fact is what merce as long as Congress imposes the same The proposed Durbin-Lipinski legislation has led to the proposed federal intervention. minimum wage requirements on non-state prohibits Illinois from applying its laws reg- B. The Federalism Problem. workers in, or affecting, interstate com- ulating one of its cities. The proposed federal As mentioned above, section 3(a)(3) of the merce. Congress can regulate the States law also authorizes the federal government proposed federal law overrides the licensing using the Commerce Clause if it imposes re- to make an agreement with Chicago, pursu- requirements of § 47 of the Illinois Aero- quirements on the States that are generally ant to which Chicago will assume some sig- nautics Act. This section states: applicable—that is, if it imposes the same nificant obligations, even though present (3) The State shall not enact or enforce burdens on private employers. Congress can- state law gives Chicago no authority to en- any law respecting aeronautics that inter- not single out the States for special burdens; gage in this activity. As the six to three New feres with, or has the effect of interfering it cannot commandeer or take control over York decision made clear: with, implementation of Federal policy with the States or order a state legislature to in- A State may not decline to administer the respect to the runway redesign plan includ- crease the home rule powers of the City of federal program. No matter which path the ing sections 38.01, 47, and 48 of the Illinois Chicago; it cannot enact federal legislation State chooses, it must follow the direction of Aeronautics Act. that adds to or revises Chicago’s state cre- Congress. . . . No other federal statute has In addition, section 3(f) authorizes Chicago ated and limited delegated powers. been cited which offers a state government to enter into an agreement with the federal The leading case, New York v. United no option other than that of implementing government to construct the O’Hare Airport States, held that the Commerce Clause does legislation enacted by Congress. Whether one

VerDate 11-MAY-2000 06:50 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00080 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.052 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5171 views the take title provision as lying out- cago and the FAA in § 3(f) of the proposed States then sell this personal information to side Congress’ enumerated powers, or as in- Durbin-Lipinski legislation call for construc- businesses and individuals, generating sig- fringing upon the core of state sovereignty tion as a ‘‘federal project’’ but then require nificant revenue. To limit such sales, Con- reserved by the Tenth Amendment, the pro- Chicago to either construct or allow con- gress enacted the DPPA, which governs any vision is inconsistent with the federal struc- struction without a permit from the State of state department of motor vehicles (DMV), ture of our Government established by the Illinois). or state officer, employee, or contractor Constitution. We should realize that the proposed Dur- thereof, and any resale or re-disclosure of The proposed Durbin-Lipinski legislation bin-Lipinski legislation—in commanding and drivers’ personal information by private per- is very much like the law that six justices singling out the State of Illinois to, in effect, sons who obtained the information from a invalidated in New York. The O’Hare bill repeal its legislation governing the powers state DMV. The Court concluded: ‘‘The provides that, no matter what the State delegated to the City of Chicago—is quite DPPA’s provisions do not apply solely to chooses, ‘‘it must follow the direction of unusual and not at all in the tradition of fed- States. Private parties also could not buy Congress.’’ The State has ‘‘no option other eral legislation. For most of our history, the information for certain prohibited pur- than that of implementing legislation en- Congress would explicitly only ‘‘rec- poses nor could they resell the information acted by Congress.’’ ommend’’ or ‘‘request’’ the assistance of the to other parties for prohibited purposes, and The Court in New York went on to explain governors and state legislatures in imple- the States could not sell the information to that there are legitimate ways that Congress menting federal policy. It is only in very re- the private parties for certain purposes if the can impose its will on the states: cent times that Congress has sought explic- private parties could not buy it for those This is not to say that Congress lacks the itly to commandeer or order the legislative purposes. ability to encourage a State to regulate in a and executive branches of the States to im- Unlike the law in New York, the Court particular way, or that Congress may not plement federal policies. Because such fed- concluded that the DPPA does not control or hold out incentives to the States as a meth- eral legislative activity is recent, the case regulate the manner in which States regu- od of influencing a State’s policy choices. law in this area is recent, but the case law is late private parties, it does not require the Our cases have identified a variety of meth- clear in prohibiting this type of federal as- States to regulate their own citizens, and it ods, short of outright coercion, by which sertion of power. does not require the state legislatures to Congress may urge a State to adopt a legis- New York v. United States held that Con- enact any laws or regulations. Unlike the lative program consistent with federal inter- gress cannot ‘‘command a State government law in Printz, the DPPA does not require ests. Two of these methods are of particular to enact state regulation.’’ Congress may state officials to assist in enforcing federal relevance here. regulate interstate commerce directly, but it statutes regulating private individuals. This The Court then discussed those two alter- may not ‘‘regulate state governments’’ regu- DMV information is an article of commerce natives. First, there is the spending power, lation of interstate commerce.’’ The Federal and its sale or release into the interstate with Congress attaching conditions to the Government may not ‘‘conscript state gov- stream of business is sufficient to support receipt of federal funds. The proposed Dur- ernments as its agents.’’ Congress has the federal regulation. bin-Lipinski legislation rejects the spending ‘‘power to regulate individuals, not States.’’ The DPPA is a ‘‘generally applicable’’ fed- power alternative. Second, ‘‘where Congress In short, there are important limits on the eral law regulating commerce because it reg- has the authority to regulate private activ- power of the federal government to com- ulates the universe of entities that partici- ity under the Commerce Clause, we have rec- mandeer the state legislature or state execu- pate as suppliers to the market for motor ve- ognized Congress’ power to offer States the tive branch officials for federal purposes. An- hicle information—the states as initial sup- choice of regulating that activity according other way to think about this issue is that, pliers and the private resellers or redis- to federal standards or having state law pre- to a certain extent, the Constitution forbids closers of this information. ‘‘South Carolina empted by federal regulation.’’ The proposed Congress from imposing what recently have has not asserted that it does not participate Durbin-Lipinski legislation rejects that al- been called ‘‘unfunded mandates’’ on state in the interstate market for personal infor- ternative as well. It does not propose that officials. Congress cannot simply order the mation. Rather, South Carolina asks that Congress directly takeover and expand States or state officials or a city to take the DPPA be invalidated in its entirety, even O’Hare Airport. Instead, it proposes that the care of a problem. Congress can use its as applied to the States acting purely as City of Chicago be allowed to exercise power spending power to persuade the States by commercial sellers.’’ that the State does not allow the City to ex- using the carrot instead of the stick. CONCLUSION ercise. While there are those who have attacked New York v. United States did not ques- the restrictions that New York v. United The proposed federal law dealing with the tion ‘‘the authority of Congress to subject States have imposed on the Federal Govern- O’Hare Airport expansion is most likely un- state governments to generally applicable ment, it is worth remembering the line-up of constitutional because it imposes federal laws.’’ But Congress cannot discriminate the Court in Maryland v. Wirtz when the jus- rules on the relationship between a city and against the States and place on them special tices first considered this issue. That case re- the State that created the city. It subjects burdens. It cannot commandeer or command jected the applicability of the Tenth Amend- Illinois to special burdens that are not gen- state legislatures or executive branch offi- ment and held that it was constitutional for erally applicable to private parties or even cials to enforce federal law. Congress can Congress to set the wages, hours, and work- to other States. It authorizes the City of regulate interstate commerce and States are ing conditions of employees, including state Chicago to do that which Illinois now pro- not immune from such regulation just be- employees in interstate commerce. However, hibits. There is no escape from the conclusion cause they are States. For example, Congress Justice Douglas, who was joined by Justice that the proposed federal law does not regu- can forbid employers from hiring child labor Stewart, dissented. Douglas found the law to late the behavior of private parties in inter- to work in coal mines, whether a private be a ‘‘serious invasion of state sovereignty state commerce. It does not subject the company or a State owns the coal mine and protected by the Tenth Amendment’’ and State of Illinois to ‘‘generally applicable’’ employs the workers. ‘‘not consistent with our constitutional fed- legislation. Instead, Congress is regulating Printz v. United States. Following the New eralism.’’ He objected that Congress, using the state’s regulation of interstate com- York decision, the Court invalidated another the broad commerce power, could ‘‘virtually merce. Congress may not conscript the in- federal statute imposing certain administra- draw up each State’s budget to avoid ‘disrup- strumentalities of state government and tive duties on local law enforcement offi- tive effect[s]’’’ on interstate commerce. New state power as tools of federal power. The cials, in Printz v. United States. The Brady York v. United States prevents this result. Act, for a temporary period of time, required The ‘‘generally applicable’’ restriction is case law is clear that Congress does not have local law enforcement officials to use ‘‘rea- important, and it explains Reno v. Condon. this power. sonable efforts’’ to determine if certain gun Congress enacted the Driver’s Privacy Pro- Sincerely, sales were lawful under federal law. The fed- tection Act (DPPA), which limited the abil- RONALD D. ROTUNDA, eral law also ‘‘empowered’’ these local offi- ity of the States to sell or disclose a driver’s The Albert E. Jenner, Jr. Professor of Law. cers to grant waivers of the federally pre- personal information to third parties with- MEMORANDUM scribed 5-day waiting period for handgun out the driver’s consent. Chief Justice purchases Note that the proposed Durbin-Li- Rehnquist, for a unanimous Court, upheld July 13, 2002. pinski legislation will also ‘‘empower’’ the the law as a proper regulation of interstate Re Impact of the Lipinski/Oberstar Bill on Il- City of Chicago to do that which Illinois does commerce and not violating any principles linois Law and Unchecked Condemnation not authorize the city to do. of federalism found in New York v. United Powers for Chicago to Condemn Land in To make the analogy even more compel- States or Printz because the law was ‘‘gen- Other Communities. ling, the chief law enforcement personal erally applicable.’’ To: Senator Peter Fitzgerald; Congressman suing in the Printz case said that state law Reno grew out of a congressional effort to Henry Hyde; Congressman Jesse Jack- prohibited them from undertaking these fed- protect the privacy of drivers’ records. As a son, Jr. eral responsibilities. That, of course, is the condition of obtaining a driver’s license or From: Joe Karaganis. exact position in which Chicago finds itself. registering a car, many States require driv- Sandy Murdock asked me to give you some State law prohibits Chicago from entering ers to provide personal information, such as background legal analysis of the impact of into and committing to these federal respon- name, address, social security number, med- the language in the Lipinski/Oberstar bill sibilities (e.g., the agreements between Chi- ical information, and a photograph. Some (see § 3 of the bill) to create a federal law

VerDate 11-MAY-2000 06:50 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00081 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.056 pfrm09 PsN: H23PT1 H5172 CONGRESSIONAL RECORD — HOUSE July 23, 2002 override (preemption) of the Illinois Aero- authority to condemn has expressly man- tract awards that have been documented at nautics Act—specifically as that impact re- dated in the Illinois Municipal Code (65 ILCS O’Hare, the Lipinski (and Durbin) legislation lates to expanding Chicago’s power to engage 5/11–102–10) that this grant of authority to will literally ‘‘open the chicken coop’’ to in widespread condemnation and demolition condemn must be in accordance with the re- widespread potential for corruption. of residential and business properties in quirements of the Illinois Aeronautics Act. other municipalities outside Chicago’s 3. Acquisition of land by Chicago without GOOD GOVERNMENT VS. CITY HALL boundaries. complying with the Illinois Aeronautics Act CORRUPTION As you know, on July 9, 2002 Judge Hollis is thus not only a violation of the Illinois It’s hard to pinpoint Chicago City Hall’s Webster of the DuPage County Circuit Court Aeronautics Act, such failure constitutes an position on airports because it changes about entered a ruling declaring that Chicago had unlawful ultra vires action by Chicago in as often as the wind in the Windy City. no authority under Illinois law to acquire violation of the Illinois Constitution and the In 1988, City Hall opposed a new airport or property in other municipalities without Illinois Municipal Code. Without compliance O’Hare expansion, saying they were unneces- complying first with § 47 of the Illinois Aero- with the Illinois Aeronautics Act, Chicago sary. In 1990, City Halls said a new airport nautics Act, 620 ILCS 5/47 which requires any has no authority under either Article VII, was needed and proposed building one on the municipality to first obtain a ‘‘certificate of Section VII of the Illinois Constitution and South Side near Lake Calumet. In 1994, City approval’’ from the Illinois Department of no authority under the Illinois Municipal Hall abandoned the Lake Calumet Airport Transportation before making any alteration Code to acquire land in other municipalities. proposal and once again claimed no new run- or extension of an airport. The Lipinski (and Durbin) legislation ways were needed. Prior to her ruling, Chicago had proposed seeks to ‘‘preempt’’ and destroy the Illinois Just last year, the Mayor held a press con- to acquire and demolish over 500 homes in Aeronautics Act, but in doing so the Lipin- ference to reiterate that O’Hare could handle Bensenville before seeking a certificate of ski (and Durbin) legislation attempts to de- all regional capacity needs until 2012, and approval. In testimony at the July 9, injunc- stroy and rewrite the framework created by that no runways were needed. Then in 2002, tion hearing before Judge Webster, the lead the Illinois Constitution and the Illinois Mu- the Mayor changed course again and said six IDOT official in charge of the IDOT approval nicipal Code. Why not just abolish state con- new runways were needed at O’Hare imme- process (James Bildilli) testified: stitutions and state statutory codes alto- diately. We don’t need it. We need it. We 1. Without judicial enforcement of the Illi- gether and let Congress rewrite the state don’t need it. We need it. What is it? nois Aeronautics Act, Chicago could acquire constitutions and state statutory codes of all Through all the flipflopping, one factor has and demolish all the homes and businesses 50 states? remained consistent. That is City Hall’s de- proposed in Bensenville and Elk Grove (over Beyond the enormous legal implications of sire to protect cronyism and pin-striped pa- 500 homes and dozens of businesses) and only such action, the practical effect of the Lipin- tronage at O’Hare. The Chicago Tribune last after such acquisition and demolition, would ski (and Durbin) legislation is to do exactly year won a Pulitzer Prize for writing about IDOT some years later hold a hearing in what Judge Webster said Illinois law pro- what it called in one editorial: ‘‘Daley and which IDOT would hear evidence and con- hibits: the stench at O’Hare.’’ Mr. Speaker, I ask for sider whether the harm caused by the acqui- 1. The Lipinski (and Durbin) legislation unanimous consent to enter this editorial sition and demolition justified IDOT’s ap- will ‘‘authorize’’ Chicago to condemn land in into the record. other municipalities even though no such au- proval of the project. Essentially IDOT, in The Tribune’s continuing series recounted thorization exists for Chicago to do so under reaching its decision on the certificate of ap- numerous insider deals that enriched the the Illinois Constitution or Illinois Munic- proval, would hear and consider evidence of Mayor’s family, friends and contributors. the harm caused by the acquisition and dem- ipal Code. 2. The Lipinski (and Durbin) legislation And these aren’t penny-annie deals. For ex- olition and consider this harm as a basis of ample, the City handed out $400 million to 30 its decision—but only after the harm (and will ‘‘authorize’’ Chicago to engage in unfet- tered condemnation authority with the abil- engineering firms in no-hid contracts—when destruction) had been inflicted. the City denied it was working on expansion 2. Without judicial enforcement of the Illi- ity to acquire and destroy thousands of plans. A longtime mayoral friend was paid nois Aeronautics Act, Chicago could acquire homes and businesses in many other munici- $1.8 million to arrange a meeting with a con- by condemnation or otherwise all of palities—all in violation of the limits on Chi- cessionaire. Another friend was paid $480,000 Bensenville, Wood Dale, Elk Grove Village cago’s state constitutional and state Munic- to lobby for O’Hare, even though he wasn’t a (thousands of homes and businesses) and any ipal Code authority imposed by the Illinois lobbyist. Meanwhile, airport vendors, con- other municipality—without any need for a Constitution and Illinois General Assembly. cessionaires and businesses tied to O’Hare prior certificate of approval form IDOT As Senator Fitzgerald has pointed out in gave the mayor $360,000 in campaign gifts, under § 47. his remarks in his recent colloquy with Sen- Thankfully, Judge Webster rejected Chi- ator Durbin, the Lipinski (and Durbin) legis- according to the Tribune. cago and IDOT’s claims and applied and en- lation would give Chicago unfettered ability More recently, Chicago unveiled plans to forced the plain language of the statute— to condemn properties outside the City of spend $1.3 billion for terminal improvements prohibiting Chicago from acquiring and de- Chicago. If applied in other states, it would at O’Hare. After viewing the plan, U.S. molishing homes and businesses in another ‘‘authorize’’ one municipality (whichever Transportation Secretary Norman Mineta municipality without first obtaining a cer- municipality Congress chose) to disregard remarked that the massive project included tificate of approval from IDOT. the limits on that municipality’s delegated ‘‘not one dime for new capacity.’’ Mineta It is important for you to understand that powers created by that state’s constitution joked, ‘‘O’Hare will have the finest food the preemption approach of the Lipinski Bill and state statutory code) and to condemn court in America.’’ (as well as Durbin’s) will not simply feder- land in any other municipality in that Now the City says trust us to build six new ally destroy key provisions of the Illinois state—in total federal preemption of that runways for billions of dollars. Aeronautics Act (namely §§ 47, 48, and 38.01). state’s constitution and municipal code. The bottom line is: City Hall’s repeated The Lipinski legislation has the effect of de- As we have said before, such radical action flip-flopping; its insider deals; and decades of stroying the entire framework that Illinois is a blatant violation of the federalism/Tenth deceit on this important issue have left it has created under the Illinois Constitution Amendment Structure of the federal Con- with little credibility. and Illinois Municipal Code for preventing stitution. But even if Congress did have such I oppose such a deal. The City has strained abuses of the state law condemnation power power, should Congress be overriding state its credibility and blocked the doorway to by municipalities. Here is the Illinois con- constitutions and municipal codes to give opportunity long enough. The region is pay- stitutional and Illinois statutory framework federal ‘‘authorization’’ to one municipality ing with lost jobs, high fares, poor service as upheld and enforced by Judge Webster: in a state to run roughshod over other mu- and political corruption. 1. Under the Illinois Constitution, Chicago nicipalities in that state in violation of the This airport debate is about good govern- has only that condemnation authority to state constitution and municipal statutory ment. A third airport would protect tax- condemn lands in other municipalities for code? payers interests and improve service, while airport purposes that is expressly delegated Postscript: There is another aspect of the also resolving our nation’s aviation crisis to Chicago by the laws of the State of Illi- Lipinski preemption which may be of inter- quicker, cheaper, safer and cleaner. nois. Article VII, Section 7 of the Illinois est. The Lipinski bill proposes to preempt Constitution. Under long standing Illinois § 38.01 of the Illinois Aeronautics Act, 620 CONSUMER PROTECTION FARES law (‘‘Dillon’s rule’’ followed in almost all of ILCS 5/38.01. This section requires Chicago to The O’Hare expansion plan is an anti-con- the 50 states) any powers delegated to a mu- obtain IDOT approval for any grant of fed- sumer measure. nicipality by the General Assembly under eral funding to be used on airport projects Two airlines—American and United Air- this constitutional provision are narrowly which the Illinois General Assembly has au- lines—control roughly 90 percent of the construed against assertions of authority by thorized Chicago to construct. This is an im- flights in and out of O’Hare. Combined, they the municipality. portant financial oversight tool (created by have a monopoly. 2. The Illinois General Assembly has dele- the Illinois General Assembly as a condition Due to a lack of competition, fares at Chi- gated to Chicago the authority to condemn of a grant of authority to build airports) cago O’Hare continue climbing higher and lands in other municipalities for airport pur- which allows the State of Illinois to engage faster than the national average. Six years poses in the Illinois Municipal Code (65 ILCS in financial oversight of airport actions by ago, O’Hare fares were 21 percent above the 5/11–102–4) but as an essential element of that Chicago. Given the widespread abuses in con- national average. Today, they are 33 percent

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00082 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.078 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5173 above the national average. In real terms, linois pioneers, as well as many of their mod- as a no-bid consultant—portrayed the meet- Chicagoans today pay more than $1 billion a ern era descendants. These cemeteries have ing at the Bensenville Community Public Li- year in overcharges to use O’Hare. served this purpose for more than 150 years brary. The Secretary of Transportation in Illinois since their first church members were laid to Resthaven president Lee Heinrich, vice often tells a story about his travels from rest in the 1840s. president Bob Placek and their attorney said Springfield Illinois to Washington. If he flies These individuals, their descendants and they were there to listen to Boyle and an- from Springfield to O’Hare and then to 1,600 other souls lie at rest in St. Johnannes, other consultant, Robert Merryman of O.R. Washington, it costs him about $400. How- including some buried within the last year. Colan Associates. ever, if he drives from Springfield to O’Hare Hundreds of others lie at rest at Resthaven, Merryman—after Boyle nearly canceled and then flies to Washington—on the exact including mayors, business owners, farmers, the meeting because of the presence of a re- same plane—it costs him nearly $1,500, or factory workers, soldiers and housewives. porter and the lawyer—outlined several op- three times more. That’s because Springfield Members of the Potowatamie tribe also are tions, all of which involved the city buying has competition. From there, one can choose buried at Resthaven. the cemetery land. to fly through Chicago or St. Louis. The poor Illinois law states that a cemetery cannot ‘‘Let’s start with the assumption that you traveler in Chicago has few options. And he be removed without the owner’s consent, but have to go,’’ he said softly, speaking in the or she pays mightily. that hasn’t stopped the City of Chicago from consoling tones of a funeral director. ‘‘The airport could simply purchase O’Hare’s monopoly fares have been the sub- planning to dig up these souls despite both Resthaven and Resthaven is no more,’’ he ject of analysis in recent years by the Gen- churches stating publicly that they do not intend to provide consent. said. eral Accounting Office, the U.S. DOT and the The second possibility, he said, would be to State of Illinois, among others. Each study Again, we implore you to vote against H.R. 3479. Let the dead rest in peace. ‘‘functionally replace Resthaven’’ by build- concluded that O’Hare fares are considerably ing ‘‘a new Resthaven’’ elsewhere. HENRY HYDE. higher than average simply because of a lack Third, he said, the cemetery could be JESSE JACKSON, Jr. of competition. moved to another graveyard, where ‘‘a sec- PHIL CRANE. A lack of competition has also resulted in tion can be Resthaven.’’ Headstones and airlines reducing service or methodically monuments would go with the remains, the [From the Chicago Sun-Times, July 14, 2002] abandoning service to less-profitable mar- city would cover costs, and if some families kets, which severely hurts the economy of MOVING GRAVES CAN BE ‘ROYAL MESS’ wanted relatives reburied elsewhere, that small and mid-sized cities. (By Robert C. Herguth, Transportation would be fine, too, he said. Relatives could In the past 10 years, O’Hare has terminated Reporter) decide who ‘‘disinters and reinters the service to more than a dozen markets, from In the 1990s, St. Louis’ Lambert Airport body,’’ and help monitor the process, he said. South Carolina to North Dakota. moved thousands of bodies from the crum- Merryman’s company was involved in the Will adding new runways at O’Hare in- bling, mostly black Washington Park Ceme- Washington Park Cemetery relocation. The crease competition or lower fares? It’s un- tery to make way for a transit line and cre- firm did not select the archaeologist facing likely. ate a larger, flatter buffer for runways. the allegations of desecrating the remains A few years ago, Congress lifted the re- Trouble, it turned out, was almost as boun- and, in fact, was asked ‘‘to come and correct strictions on slots for commuter flights at tiful as bones. An archaeologist hired to help the situation,’’ according to Chicago Avia- O’Hare—theoretically in the name of in- with disinterment was accused of snatching tion Department spokeswoman Monique creasing competition. However, the vast ma- limbs and yanking out teeth, supposedly for Bond. jority of the new slots were snapped up by research, and later of hiding corpses to en- The firm also helped handle the ‘‘land ac- commuters planes owned by or affiliated sure he got paid. A state inspector climbed quisition aspects’’ of moving graves from with United and American. Why, because into a burial vault and held what was de- Bridgeton Memorial Cemetery in St. Louis, only United and American provide a network scribed as a ‘‘mock funeral.’’ which currently is being excavated to make of connecting flights. There also were reports of coffins being ac- way for new and longer runways at Lambert, Now, the airlines will tell you that no car- cidentally pulverized by machinery. said Lambert spokesman Mike Donatt. rier wants to come to Peotone. But that’s ‘‘That was a royal mess,’’ a person associ- HOW A CEMETERY IS MOVED simply not true. At least two airlines—Spirit ated with the project recently remarked. Locating and moving remains can be a and Virgin—have said they would love to fly While an extreme example, the St. Louis tough process, but it’s one played out quite out of a third airport. Moreover, last sum- work demonstrates how bad an already dif- frequently for road, airport and other public mer the CEO of American Airlines, Donald ficult and delicate process can get. works projects, said Randolph Richardson. Carty, said American would use Peotone. And it serves as a cautionary tale as the He owns Kentucky-based Richardson Corp., This airport debate is about consumer pro- City of Chicago—using one of the same con- which does the physical part of relocating tection. A third airport will increase com- sultants involved in the Washington Park ef- graves. petition, which will reduce fares, while also fort—makes plans to bulldoze two historic For big jobs, Richardson may bring in 15 resolving our nation’s aviation crisis suburban cemeteries, and 433 acres of homes workers in blue jeans and knee boots, and quicker, cheaper, safer and cleaner. and businesses, to accommodate a proposed heavy equipment. After mapping a cemetery, O’Hare Airport runway expansion. a worker with a ‘‘probe rod’’ tries to gauge STOP O’HARE EXPANSION ‘‘We’ve thought about those kinds of the depth of graves and directs a backhoe op- LET 2,000 SOULS REST IN PEACE things,’’ said Bob Sell, referring to Lam- erator on how far to dig. ‘‘If the grave itself bert’s problems. is 6 feet deep you dig down around 41⁄2 feet, DEAR COLLEAGUE: Two historic cemeteries The Loop attorney has dozens of relatives and the rest of it is hand digging,’’ he said. stand in the path of the runways proposed buried at St. Johannes Cemetery, which is ‘‘Say we’ve got a row of 50 graves, we’d under a plan to expand Chicago O’Hare Inter- targeted for relocation, along with tiny start at the end with a backhoe, the man national Airport. For this and many reasons Resthaven Cemetery. with the probe rod is guiding the backhoe to more, we urge you to oppose H.R. 3479 or any ‘‘The notion of someone going to the ceme- tell him how deep to go, we dig a trench to legislation that would essentially force the tery and putting a shovel to my family mem- expose those 50 graves, that allows us to get Federal Aviation Administration to tear ber is horrible. That something could go the men in there to work,’’ he said. down and reconstruct O’Hare. We believe wrong in that process, it makes me sick to Bodies are placed in individual wooden this legislation is constitutionally suspect, my stomach.’’ boxes—there are several sizes—unless coffins deeply divisive, environmentally flawed, Like many homeowners in the proposed ex- are intact, he said, adding that his workers wasteful and dangerous. pansion zone, leaders of Resthaven and St. may get tetanus shots before a project be- Many of you might be wondering why this Johannes don’t want to sell. One and perhaps cause of old rusty nails. issue should matter to you. Well, the answer both graveyards will fight the city in court, Caskets are put on trucks and driven to is simple. If this atrocity could happen in cemetery officials said. their new resting place, he said. His company our backyards, it could happen in yours! The process, as of last Tuesday, is in a typically charges between $1,000 and $1,500 On the reverse side of this page, please holding pattern because of a DuPage County per body. read an article that was printed in the Chi- judge’s ruling in a different lawsuit. The Richardson, whose firm relocated some of cago Sun-Times detailing the ‘‘royal mess’’ judge ordered Chicago to halt land buys until the bodies from St. Louis’ Washington Park, that happened when contractors tried to it receives a state permit, something city of- recalls some of the trouble there, but insists move thousands of bodies in a nearby ceme- ficials believe is unnecessary and will appeal. things usually are more smooth. tery when St. Louis Lambert Airport ex- Meanwhile, the city won’t even be negoti- GUARDS QUESTIONING VISITORS panded in the 1990s. ating sales. Boyle and Chicago’s first deputy aviation Near O’Hare, there are two cemeteries: St. In another room Tuesday in another part commissioner, John Harris, have said they Johnannes Cemetery (owned and maintained of DuPage, a different aspect of the same want to handle their cemetery situation by St. John’s United Church of Christ) and thorny issue played out as two of the city’s with dignity and sensitivity. But the city is Resthaven Cemetery (affiliated with the hired guns met for the first time with lead- having its own public relations headaches. Methodist Church). Most people have never ers of Resthaven to ‘‘open up the dialogue.’’ The cemeteries are outside Chicago’s bor- heard of these cemeteries, but they serve as That’s how Jeff Boyle—a former top aide ders, but can only be reached by a city- the final resting place of some of the first Il- to Mayor Daley now being paid $240 an hour owned access road monitored by city guards.

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00083 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.080 pfrm09 PsN: H23PT1 H5174 CONGRESSIONAL RECORD — HOUSE July 23, 2002 Twice this month, a guard approached a Doubling the traffic in the air space Under the framework of federalism estab- St. Johannes visitor at the cemetery, ques- around O’Hare from 900,000 to 1.6 million op- lished by the federal constitution, Congress tioned the person and asked that they ‘‘sign erations will make flying into O’Hare less is without power to dictate to the states how in.’’ safe for the public—hardly noncontroversial the states delegate power—or limit the dele- In the first instance, the visitor said, he for the flying public. gation of that power—to their political sub- was interrupted while praying at a grave This bill will increase environmental pol- divisions. Unless and until Congress decides site, and after refusing to sign in was met by lution—O’Hare is already the number one that the federal government should build air- five Chicago police cars on the access road. polluter in Illinois—hardly non-controversial ports, airports will continue to be built by The visitor in the second case was the pastor for those having to live in the increased pol- states or their delegated agents (state polit- of the church that owns St. Johannes. lution. ical subdivisions or other agents of state Just before being confronted—on Wednes- The Chicago Tribune won a Pulitzer Prize power) as an exercise of state law and state day, after the judge’s ruling—the minister for documenting ‘‘sleaze’’ surrounding the power. Further compliance by the political was surprised to find four O.R. Colan em- City of Chicago and past O’Hare construc- subdivision of the oversight conditions im- ployees nosing around graves at St. Johan- tion, vender, and service contracts. By pass- posed by the State legislature as a condition nes, apparently taking down names from ing this bill—and removing the Illinois Aero- of delegating the state law authority to headstones, although they had no permission nautics Law and by-passing the Illinois Gen- build airports is an essential element of that to be there. eral Assembly—we are virtually sanctioning delegation of state power. If Congress strips ‘‘They said they were doing a study,’’ Sell more ‘‘sleaze’’ to be found around O’Hare away a key element of that state law delega- said. ‘‘They’re trespassing on private prop- construction, vender, and service contracts. tion, it is highly unlikely that the political erty.’’ Since when has such potential ‘‘sleaze’’ be- subdivision would continue to have the Merryman did not return phone calls. City come non-controversial for Congress. power to build airports under state law. The officials were at a loss to explain. I don’t consider the Federal Government political subdivision’s attempts to build run- But Roderick Drew, a spokesman for running over any future Governor of Illinois, ways would likely be ultra vires (without au- Daley, said Friday that there’s been a the Illinois General Assembly, the Illinois thority) under state law. ‘‘change in policy’’ that ‘‘nobody will have to Aeronautics Law, and the 10th Amendment Under the Tenth Amendment and the sign in any more.’’ of the U.S. Constitution—to build an air- framework of federalism built into the Con- ‘‘Anybody who wants access to that ceme- port—non-controversial. stitution, Congress cannot command the tery during those posted hours will not be Finally, we’re already finding out how con- States to affirmatively undertake an activ- stopped, will not have to sign in,’’ he said, troversial this bill is as Judge Hollis Webster ity. Nor can Congress intrude upon or dic- adding that the sign in ‘‘has turned out to be on July 9, 2002, stopped the City of Chicago tate to the states, the prerogatives of the a much greater inconvenience to the people from running rough-shod over their north- states as to how to allocate and exercise who access it.’’ west suburban neighbors by illegally trying state power—either directly by the state or to buy up and tear down their homes and by delegation of state authority to its polit- FLOOR STATEMENT OF U.S. REPRESENTATIVE businesses to make room for O’Hare expan- ical subdivisions. JESSE L. JACKSON, JR., OPPOSING H.R. 3479: sion. This is just one of many controversial As stated by the United States Supreme THE NATIONAL AVIATION CAPACITY EXPAN- lawsuits that have been and will be filed in Court: SION ACT OF 2002—MONDAY, JULY 15, 2002 the future if this bill passes and becomes ‘‘[T]he Framers explicitly chose a Con- WASHINGTON, DC law. stitution that confers upon Congress the How is tearing down and rebuilding power to regulate individuals, not States. Mr. Speaker, I ask unanimous consent to O’Hare—which will be three times as expen- . . . We have always understood that even revise and extend my remarks. sive, take three times longer, be less protec- where Congress has the authority under the Mr. Speaker, I rise in opposition to H.R. tive of the environment, make the skys less Constitution to pass laws requiring or pro- 3479. safe, and be a less permanent solution than hibiting certain acts, it lacks the power di- Votes on the suspension calendar are sup- building a third airport—non-controversial? rectly to compel the States to require or prohibit posed to be, by definition, non-controversial. I say, solve the current air capacity crisis by those acts.’’—New York v. United States, 505 But to argue that H.R. 3479 is non-controver- building Peotone first, faster, cheaper, and U.S. 144, at 166 (1992) (emphasis added). sial is like arguing that the elimination of safer, then evaluate what needs to be done It is incontestable that the Constitution estate taxes, gun control legislation, a pa- with O’Hare. established a system of ‘‘dual sovereignty.’’— tients bill of rights, and prescription drug H.R. 3479 falls woefully short of providing Printz v United States, 521 U. S. 898, 918 benefits for seniors should all be on the sus- an adequate, equitable solution. (1997) (emphasis added). pension calendar. H.R. 3479 is one of the most Please know that I do not oppose fixing the Although the States surrendered many of controversial bills to come before the House current air capacity crisis surrounding their powers to the new Federal Govern- this year. It has been extremely controver- O’Hare. But I have many, many grave con- ment, they retained ‘‘a residuary and invio- sial in Chicago, in the northwest suburbs, in cerns about this specific expansion plan. lable sovereignty,’’ The Federalist No. 39, at Illinois generally, in the Illinois congres- Concerns about cost. About safety. About en- 245 (J. Madison). This is reflected throughout sional delegation (our two U.S. Senators are vironmental impact. About federal prece- the Constitution’s text. divided over it), in all House and Senate dence—and I associate myself completely Residual state sovereignty was also im- Committees, in the full Senate, and, if a full with the remarks of my good friend, Mr. plicit, of course, in the Constitution’s con- debate were held on the House floor today, HYDE. ferral upon Congress of not all governmental the NATION would see just how controver- Although I oppose this bill for many rea- powers, but only discrete, enumerated ones, sial this bill is. sons, I rise today to discuss an important Art. 1, Sec. 8, which implication was ren- This bill has already been delayed in the element of this bill—constitutionality. dered express by the Tenth Amendment’s as- Senate with one virtual filibuster—and it The attempt to rebuild and expand O’Hare sertion that ‘‘[t]he powers not delegated to will be subjected to every parliamentary and Airport—Congress is inappropriately vio- the United States by the Constitution, nor tactical maneuver possible to try to stop it lating the Tenth Amendment. prohibited by it to the States, are reserved when it comes before the Senate again. Hard- In other contexts—specifically with regard to the States respectively, or to the peo- ly non-controversial! to certain human rights—I believe that the ple.’’—ld at 918–919. To tear down and rebuild O’Hare will cost Tenth Amendment serves to place limita- This separation of the two spheres is one of taxpayers three times as much money as it tions on the federal government with which the Constitution’s structural protections of will cost to build a third South Suburban I disagree. Indeed, in the area of human liberty. ‘‘Just as the separation and inde- airport—$15–20 billion (not the $6.6 billion rights, I believe new amendments must be pendence of the coordinate branches of the generally used) versus $5–7 billion. This bill added to the Constitution to overcome the Federal Government serve to prevent the ac- is hardly noncontroversial for taxpayers! limitations of the Tenth Amendment. How- cumulation of excessive power in any one Tearing down and rebuilding O’Hare is es- ever, building airports is not a human right. branch, a healthy balance of power between timated to take 15-to-20 years, assuming it Therefore, in the present context, I agree the States and the Federal Government will proceeds on schedule, without lawsuits—not that building airports is appropriately with- reduce the risk of tyranny and abuse from ei- likely—while building a new South Suburban in the purview of the states. ther front.—Id at 921 quoting Gregory v. Airport would take five years, it would ex- I believe attempts by Congress to strip the Ashcroft, 501 U.S. 452 at 458 (1991). pand thereafter as need arises, and would be authority of Governor Ryan and the Illinois The Supreme Court in Printz went on to a more permanent solution to the capacity Legislature over the delegation and author- emphasize that this constitutional struc- crisis. When the new O’Hare is completed, we ization to Chicago of state power to build tural barrier to the Congress intruding on will be in the same position we are today airports—along with the authority of gov- the State’s sovereignty could not be avoided with regard to the air capacity crisis. How is ernors and state legislatures in a host of by claiming either (a) that the congressional that not controversial? other states such as Massachusetts (Logan), authority was pursuant to the Commerce This bill will double the noise pollution in New York (LaGuardia and JFK), New Jersey Power and the ‘‘necessary and proper clause the suburban communities surrounding (Newark) California (San Francisco airport), of the Constitution or (b) that the federal O’Hare. It is hardly non-controversial in the and the State of Washington (Seattle)—raise law ‘‘preempted’’ state law under the Su- polluted northwest suburbs of Chicago. serious constitutional questions. premacy Clause. 521 U.S. at 923–924.

VerDate 11-MAY-2000 06:50 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00084 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.082 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5175 It is important to note that Congress can islative authority to build runways and ter- Hub system created and maintained by the regulate—but not affirmatively command— minals at O’Hare or Midway. The require- major airlines. That the proposed or poten- the states when the state decides to engage ment that Chicago receive a state permit is tial mergers are an unacceptable expansion in interstate commerce. See Reno v. Condon, an express condition of the grant of state au- of monopolization is a given. But this Com- 528 U.S. 141 (2000). Thus in Reno, the Court thority and an attempt by Congress to re- mittee, the entire Congress, and the Admin- upheld an act of Congress that restricted the move that condition or limitation would istration need to develop and implement spe- ability of the state to distribute personal mean that there was no continuing valid cific concrete and comprehensive solutions drivers’ license information. But Reno did state delegation of authority to Chicago to to the existing Fortress Hub monopoly prob- not involve an affirmative command of Con- build airports. Chicago’s attempts to build lem. gress to a state to affirmatively undertake new runways would be ultra vires under Thankfully, we do not address this problem an activity desired by Congress. Nor did state law as being without the required state in a vacuum. The Suburban O’Hare Commis- Reno involve (as proposed here) an intrusion legislative authority. sion—an intergovernmental body of local by the federal government into the delega- Clearly this bill sets dangerous precedence governments adjacent to O’Hare airport—has tion of state power by a state legislature— by stating that Congress—not the FAA, not recently issued a comprehensive report on and the state legislature’s express limits on Departments of Transportation, not aviation the national Fortress Hub problem entitled that delegation of state power—to a state po- experts—but Congress shall plan and build If You Build It, We Won’t Come: The Collec- litical subdivision. airports. tive Refusal Of The Major Airlines To Com- H.R. 3479 would involve a federal law which Further, it ignores the 10th Amendment to pete In The Chicago Air Travel Market. The would prohibit a state from restricting or the U.S. Constitution. It guts and/or under- Suburban O’Hare Commission report con- limiting the delegated exercise of state mines state laws and environmental protec- tains a detailed analysis and description of power by a state’s political subdivision. In tions. And it sidesteps the checks-and-bal- the monopoly problem presented by the For- this case, the proposed federal law would ances and the public hearing process. tress Hub system and I won’t repeat all those seek to bar the Illinois Legislature from de- My focus today is the same as it’s always details here. But I would like to highlight ciding the allocation of the state’s power to been. Finding the best fix. And that best fix several issues from the report and discuss build an airport or runways—and especially is the construction of a third Chicago airport recommended solutions to the Fortress Hub the limits and conditions imposed by the near Peotone, Illinois. The plain truth is problem both nationally, and in Chicago. State of Illinois on the delegation of that Peotone could be built in one-third the time 1. Northwest owns Minneapolis and De- power to Chicago. The law is clear that Con- at one-third the cost. For taxpayers and troit; Delta owns Atlanta and Cincinnati; gress has no power to intrude upon or inter- travelers, it’s a no-brainer. American and United own Chicago; US Air fere with a state’s decision as to how to allo- Unfortunately, this bill mandates expan- owns Pittsburgh. cate state power. sion of O’Hare yet pays mere lip service to Ever since the passage of deregulation leg- A state’s authority to create, modify, or Peotone. It puts the projects on two separate islation in 1978, the major airlines have con- even eliminate the structure and powers of and unequal tracks. That is my opinion. solidated their economic power into a series the state’s political subdivisions—whether That is also the opinion of the Congressional of geographically distinct ‘‘Fortress Hubs’’. that subdivision be Chicago, Bensenville, or Research Service, whose analysis I will pro- Thus everyone knows that Northwest Air- Elmhurst—is a matter left by our system of vide for the record. lines dominates air travel to and from Min- federalism and our federal Constitution to What we don’t need at this critical junc- neapolis and Detroit; Delta dominates air the exclusive authority of the states. As ture is favoritism or interference from poli- travel to and from Atlanta and Cincinnati; stated by the Seventh Circuit in Commis- ticians and profit-oriented airlines to stack United and American dominate air travel to sioners of Highways v. United States, 653 the deck against Peotone. What we don’t and from Chicago; and US Air dominates air F.2d 292 (7th Cir. 1981) (quoting Hunter v. need is a bill that increases the likelihood of travel to and from Pittsburgh. City of Pittsburgh, 207 U.S. 161, 178 (1907)): a constitutional challenge that prolongs the 2. These Fortress Hub markets have eco- ‘‘Municipal corporations are political sub- debate and delays the fix. nomically attractive business travel mar- divisions of the State, created as convenient Thus, I urge members to reject this un- kets that should—in normal circumstances— agencies for exercising such of the govern- precedented, unwise, and unconstitutional attract competition to service those mar- mental powers of the State as may be en- bill. kets. trusted to them. For the purpose of exe- Virtually all of the major Fortress Hub cuting these powers properly and efficiently TESTIMONY OF CONGRESSMAN JESSE L. JACK- markets are located in thriving urban busi- they usually are given the power to acquire, SON, JR. BEFORE THE COMMITTEE ON THE ness centers. This means that in all major hold, and manage personal and real property. JUDICIARY, HOUSE OF REPRESENTATIVES, Fortress Hub markets there is a large pool of The number, nature and duration of the pow- UNITED STATES CONGRESS business travelers who would like to travel ers conferred upon these corporations and from the Fortress Hub to other destinations. the territory over which they shall be exer- OVERSIGHT HEARING ON THE STATE OF COMPETI- One would assume that this pool of busi- cised rests in the absolute discretion of the TION IN THE AIRLINE INDUSTRY—JUNE 14, 2000 ness travelers would be an attractive market State. . . . The State, therefore, at its pleas- Mr. Chairman, Ranking Member Conyers, for major airlines to compete with one an- ure may modify or withdraw all such powers, members of the Judiciary Committee. Thank other for this traffic. One would assume may take without compensation such prop- you for the opportunity to present my con- therefore that United would—under normal erty, hold it itself, or vest it in other agen- cerns about monopoly abuses in the airline circumstances—wish to compete with Delta cies, expand or contract the territorial area, industry—particularly the apparent agree- for the business traveler based in Atlanta. unite the whole or a part of it with another ment by the so-called ‘‘Big Seven’’ major Similarly, Delta would—under normal cir- municipality, repeal the charter and destroy airlines not to compete in each other’s For- cumstances—wish to compete with United the corporation. All this may be done, condi- tress Hub markets. I know much of the dis- and American for the business travel market tionally or unconditionally, with or without cussion at today’s hearing will focus on the based in Chicago or with Northwest for the the consent of the citizens, or even against recently announced merger between United business market in Minneapolis or Detroit. their protest. In all these respects the State and US Air and the potential responsive But we do not have normal circumstances is supreme, and its legislative body, con- mergers between American and Northwest here. We do not see Northwest coming before forming its action to the state constitution, and between Delta and some other major air- Congress complaining about their inability may do as it will, unrestrained by any provi- line. That these mergers are anti-competi- to compete with Delta in Atlanta for the lu- sion of the Constitution of the United tive and should be prohibited is self-evident. crative business travel market. We do not States.’’—Commissioners of Highways, 653 While I will address the issue of these pro- see Delta coming before Congress com- F.2d at 297. posed or potential mergers, I believe it im- plaining about their inability to compete Chicago has acknowledged that Illinois has portant to focus on today’s monopoly envi- with Northwest in Detroit for the lucrative delegated its power to build and operate air- ronment in the airline industry. It is true business travel market there or their inabil- ports to its political subdivisions by express that the proposed mergers will make the mo- ity to compete with United and American in statutory delegation. 65 ILCS 5/11–102–1, 11– nopoly problem worse. But what needs to be Chicago for the business travel there. In- 102–2 and 11–102–5. These state law delega- emphasized is that today—even if the pro- stead we have a collective decision by the tions of the power to build airports and run- posed or potential mergers never reach fru- major airlines—the so-called ‘‘Big Seven’’— ways are subject to the Illinois Aeronautics ition or are ultimately rejected—the major not to compete in each other’s major hub Act requirements—including the require- airlines have currently created a monopo- markets. ment that the State approve any alterations listic system of Fortress Hubs that rep- 3. This decision by the Big Seven Not To of the airport—by their express terms. Any resents a blatant violation of federal anti- Compete Appears to Be a ‘‘Per Se’’ Violation attempt by Congress to remove a condition trust laws. Moreover, if government esti- of federal Anti-trust laws. or limitation imposed by the Illinois Legisla- mates are correct, these current monopoly Given this obvious collective decision by ture on the terms of that state law delega- abuses at Fortress Hubs are costing air trav- the Big Seven to stay out of each other’s tion of authority would likely destroy the elers—especially business travelers—billions Fortress Hub markets and this collective de- delegation of state authority to build air- of dollars a year in excess fares. cision not to compete for lucrative business ports by the Illinois Legislature to Chicago— Therefore my remarks will focus on the travel in those markets, the obvious ques- leaving Chicago without delegated state leg- antitrust violations of the current Fortress tion is: Do these geographic allocation of

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00085 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.087 pfrm09 PsN: H23PT1 H5176 CONGRESSIONAL RECORD — HOUSE July 23, 2002 Fortress Hub markets by the major airlines United and American are currently work- correct many of the abuses of the Fortress constitute ‘‘per se’’ violations of federal ing with the City of Chicago on a massive ex- Hub system. But there is another aspect of antitrust laws. As set forth in the Suburban pansion of O’Hare called the ‘‘World Gate- federal power that has actually been used to O’Hare Commission report, a multitude of way’’ program. This proposal calls for spend- nurture and expand the Fortress Hub monop- Supreme Court decisions uniformly condemn ing several billion dollars in federal taxpayer oly problem—the current federal programs horizontal geographic market allocations— money to fund the expansion of United and for financial assistance to airports. such as is present in the geographic alloca- American’s hub-and-spoke monopoly at The federal government—through either tion of Fortress Hub markets—as ‘‘per se’’ O’Hare. Nowhere in the design of the World the Airport Improvement Program (AIP) or violations of the Sherman antitrust law. Gateway project is there any attempt to in- the Passenger Facility Charge Program 4. The Fortress Hub Monopoly System clude or encourage new hub-and-spoke com- (PFC)—awards or authorizes the expenditure Costs Travelers—especially business trav- petition from another major airline. Indeed, of billions of dollars for airport development. elers—billions of dollars per year in excess the entire terminal design is premised on Yet it is clear that little effort has been fares. continued growth of United and American’s made by the Department of Transportation The concentration of market power in the hub-and-spoke systems to the exclusion of to ensure that these billions of federal tax- hands of one or two airlines in a single geo- any new hub-and-spoke competitor. payer dollars are used to enhance competi- graphic market inevitably leads to the temp- 7. The Campaign to Maintain the Fortress tion and to deter monopoly. Indeed, there is tation by the dominant carriers to raise Hub System—and to Defeat the Development strong evidence that the Department of prices to higher levels than would be the of New Capacity for New Competition—has Transportation has acted in collusion with case if there was significant competition in Other Serious Consequences. the Fortress Hub major airlines to expand that market. The General Accounting Office As discussed above the principal economic the Fortress Hub monopolies and to discour- (GAO) has warned us for years that con- victims of the Fortress Hub monopoly sys- age new competition. centration of market power in one or two tem is the business traveler and our national This neglect of the antitrust implications airlines has led and will lead to significantly economy. American businesses are paying a of federal airport funding policy is vividly il- higher prices than would otherwise be the penalty of billions of dollars per year in mo- lustrated in the Administration’s bizarre use case with aggressive competition. nopoly overcharges to the major airlines of federal funding power in Chicago: The State of Illinois has produced two Fortress Hub system. Further, the prohibi- First, the Administration has repeatedly studies which suggest that the monopoly tively high prices of business travel created denied planning and development funds for a premium paid by travelers at Fortress and maintained by this Fortress Hub system new regional airport which could support O’Hare alone is on the order of several hun- are actually stifling business travel for those major new competition for United and Amer- dred million dollars per year—monopoly entrepreneurial businesses who cannot afford ican. The Administration has done so on the overcharges taken from the traveler by those prices. bizarre extra-legal claim that before a new United and American because of the lack of But the business traveler is not the only significant competition in the O’Hare mar- airport can proceed, there must be ‘‘regional victim of this Fortress Hub system. As consensus’’—a code phrase for Mayor Daley’s ket. Extended nationally, these monopoly shown by the Suburban O’Hare Commission overcharges are likely to exceed several bil- approval. No such requirement exists in fed- report and from my own experience, the eral law. lion dollars per year being paid by the na- major airlines attempts to defeat the con- tion’s air travelers. The segment of the trav- Second, the Administration is proceeding struction of new competitive capacity in the forward with Chicago’s (and United and elling public that bears the brunt of these South Suburban Chicago Airport illustrates monopoly overcharges is the business trav- American’s) design for a so-called ‘‘World the widespread adverse consequences of this eler. The anecdotal evidence is over- Gateway’’ program at O’Hare which is de- illegal conduct. whelming that the time-sensitive business signed to expand and solidify the current By seeking to expand United and Ameri- hub-and-spoke dominance of United and traveler is being charged exorbitant prices can’s dominance of the regional Chicago for business travel. It is clear that the Big American in the region. As currently pro- market through a major expansion of posed, the DOT is being asked to approve or Seven cartel is maintaining the Fortress Hub O’Hare—while refusing to compete in metro- system—and reaping huge monopoly induced authorize billions of federal taxpayer dollars politan Chicago—the major airlines (led by to build a Fortress Hub expansion designed revenues—on the backs of the business trav- United and American) have created severe eler. by United and American to keep out new environmental and economic problems and 5. The Big Seven’s refusal to Compete In hub-and-spoke competition. distortions throughout the Chicago metro Chicago—If You Build It We Won’t Come. Both of these actions by DOT are inter- Metropolitan Chicago makes a good case region. My point is that the major airlines’ related. Starving the new regional airport study of the collective refusal of the other passion for protection and expansion of the will ensure that no significant new competi- members of the Big Seven to compete with Fortress Hub monopoly system has con- tion comes into the region while funneling United’s and American’s dominance of the sequences far beyond the business traveler. billions in taxpayer dollars into United’s and Chicago air travel market. As discussed in These include: American’s expanded Fortress O’Hare will the Suburban O’Hare Commission report, the Severe environmental impacts on commu- only increase the monopoly problem in Chi- evidence is clear that United and American— nities around the Fortress Hub airport. The cago. in concert with their fellow members of the O’Hare area communities will be subjected 9. Mega-Mergers Will Only Make The Prob- Air Transport Association (ATA)—have en- to more noise, more air pollution, and more lem Worse. gaged in a collusive effort to stop construc- safety hazards because United and American My discussion above makes it clear that tion of major new capacity in metropolitan want the expansion to take place under their we already—independent of the proposed and Chicago. control at O’Hare—where by design they are potential mega-mergers—have enormous Here we have explicit evidence of the other keeping out new hub-and- spoke competi- problems with anti-trust violations in the major airlines telling the State of Illinois tion—rather than at a new regional airport airline industry’s Fortress Hub system, prob- that—even if a new airport is constructed in where a major new competitor could enter lems that cost the traveling public billions metro Chicago—they will not use that air- the region. of dollars, in overcharges each year. These port to compete head-to-head with United Serious economic decline in the commu- current problems stem from a concentration and American. When read carefully, the ATA nities in my district. By seeking to force of market power in the hands of a few. It is sponsored letter necessarily implies even traffic growth into their already overloaded obvious that the mega-mergers will only more. It suggests that these other major air- Fortress Hub at O’Hare, United and Amer- make an already terrible situation even lines simply do not wish to compete with ican (along with their colleagues at the worse. United and American in the Chicago market ATA) are causing serious economic injury to CONCLUSION AND RECOMMENDATIONS on any terms or at any location. the communities in my district. As you Nowhere do these major airlines (e.g. know, Chairman Hyde and I each represent a Based on my own analysis and that of the Delta, Northwest, Continental) offer to com- part of Chicago and its suburbs. What you Suburban O’Hare Commission, I conclude pete with United and American in the metro might not know is that the hub of business that the evidence is overwhelming that the Chicago area if favorable terms are made activity in Chicago is no longer downtown; it major airlines have developed a Fortress Hub available to them at the new airport (e.g. is O’Hare Airport. There are roughly equal system that enables individual airlines to low landing fees; high speed rail access to numbers of people living in the south sub- dominate geographic markets and charge ex- central Chicago, etc.). Nor do they alter- urbs, which I represent, and the northwest orbitant monopoly supported air fares. I fur- natively demand major hub-and-spoke capac- suburbs, which Chairman Hyde represents. ther conclude that as part of their program ity be made available to them at O’Hare so However, during the past ten years, eighty to maintain and expand this illegal system, that they can compete head-to-head at percent of the new jobs created in the Chi- the major airlines have acted in concert not O’Hare. Instead, they simply declare their cago region were in Mr. Hyde’s district while to compete in each other’s Fortress Hub refusal to use the new airport and by nec- my district lost jobs. markets for lucrative business travel mar- essary conclusion, declare their refusal to 8. The Federal Government Has Assisted In kets—with the result that business travelers compete in the metro Chicago market. the Growth and Expansion of the Fortress are overcharged billions of dollars per year. 6. The Currently Proposed O’Hare Expan- Hub Monopoly System. Finally, I conclude that this Fortress Hub sion Will Only Make the Monopoly Problem It is obvious that the Department of Jus- system constitutes a per se violation of fed- Worse. tice has broad law enforcement powers to eral antitrust laws. Given these conclusions,

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00086 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.089 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5177 I make the following recommendations to And to think it was avoidable. This debate Supporters have cited the Commerce this Committee: dates back to 1984 when the Federal Aviation Clause in defending his legislation. But the It is obvious that the proposed and poten- Administration determined that Chicago was Supreme Court in Printz v. United States tial ‘‘mega-mergers’’ should be stopped. quickly running out of capacity. The FAA specifically emphasized the 10th Amendment I respectfully ask that the Committee join directed Illinois, Indiana and Wisconsin to barrier to Congress intruding on a state’s with me in asking the Department of Justice conduct a feasibility study for a new airport. sovereignty by saying that it could not be to initiate an investigation into the collec- The exhaustive study of numerous sites con- avoided by claiming either, one, that con- tive refusal of the Big Seven airlines to com- cluded almost 10 years ago that gridlock gressional authority was pursuant to the pete against each other in each other’s For- could be best avoided by building a south Commerce Power, or, two, that federal law tress Hub markets. suburban airport. The State of Illinois then ‘‘preempted’’ state law under the Supremacy I respectfully ask that the Committee join drafted detailed plans for an airport near Clause. with me in asking the Department of Justice Peotone. Chicago has acknowledged Illinois’ author- to initiate a civil action in federal court to Unfortunately, despite the FAA’s dire ity to build and operate airports by express break up the Fortress Hub geographic mar- warning and the State’s best efforts, I statutory delegation through the Illinois ket allocation by the major airlines and to watched in amazement as the City of Chi- Aeronautics Act, including the requirement prohibit the collective refusal of the major cago went to extremes to thwart and delay that the State approve any airport alter- airlines to compete in each other’s Fortress any new capacity. ations. Under the 10th Amendment, if Con- Hub markets. In the late 1980s, Mayor Daley mocked the gress strips away a key element of the Illi- I respectfully ask that the Committee join idea of a third airport. By 1990, the City did nois law, Chicago’s attempt to build runways with me in asking the state Attorneys Gen- an about-face and proposed building a third would likely be ultra vires (without author- eral to bring civil damage actions to recover airport within the City. The City even initi- ity) under Illinois law. treble damages for the billions of dollars per ated federal legislation creating the Pas- Moreover, H.R. 2107 converts the concept of year in overcharges imposed on travelers as senger Facility Charge (PFC) to pay for it. dual sovereignty into tri-sovereignty, by a result of Fortress Hub system. But two years later the City reversed itself going beyond states’ rights to city rights. It I respectfully ask this Committee to join again and abandoned the plan, yet continued gives Mayor Daley (and the other local offi- to collect $90 million a year in PFCS. This with me in a request to the Department of cials in charge of the 68 largest airports in summer, the City told the Illinois Legisla- Justice and the Department of Transpor- the country) a greater say over national ture that O’Hare needed no new capacity tation that no further federal funds (either aviation policy than the federal government until the year 2012, then, in yet another re- Airport Improvement Program funds or Pas- or the fifty governors. versal, three weeks ago declared O’Hare senger Facilities Charges) be authorized or Indeed, H.R. 2107 sets federalism on its approved at O’Hare until there have been full needed six new runways. As the City was spending hundreds of mil- head. It makes about as much sense as put- public hearings and public consideration of ting the local police department in charge of the antitrust implications of the proposed al- lions of dollars on consultants to tell us that the City didn’t, did, didn’t, did need new ca- national defense. terations to O’Hare. Such legislation won’t improve aviation I respectfully ask that the Committee join pacity, it continued to be consistent on one thing—fighting to kill the third airport. services. In fact, it increases the likelihood with me in seeking major reform of the fed- for a constitutional challenge that will fur- eral aid process to airports to insure that the Sadly, that opposition was never based on substantive issues—regional capacity, public ther prolong this crisis. federal funds are used to promote competi- So, from a practical standpoint, I urge the tions and to discourage maintenance and safety or air travel efficiency. Instead it was rooted in protecting patronage, inside deals subcommittee to reject this measure, to re- growth of Fortress Hub monopoly power. ject cramming more planes into one of the I respectfully ask that the Committee join and the status quo. In fact, earlier this year nation’s most overcrowded airport, to reject with me in the following recommendation to the Chicago Tribune won a Pulitzer Prize for turning O’Hare into the world’s largest con- the Department of Transportation: Until documenting the ‘‘stench at O’Hare.’’ struction site for the next 20 years, and to completion of construction of a new Chicago Still, for eight years, City Hall leveraged reject sticking the taxpayers with an out- regional airport, the existing capacity of the Clinton FAA to stall Peotone. The FAA, rageous bill. O’Hare should be reallocated from its cur- ignoring its own warnings of approaching I strongly urge the committee to reject rent dominance by United and American into gridlock, conspired with the city to: (1) Mandate ‘‘regional consensus,’’ thus re- this unprecedented, unwise and unconstitu- a shared capacity allocation program that quiring Chicago mayoral approval for any tional attack against our fifty states and our reserves a significant share of OHare’s capac- new regional airport; (2) Remove Peotone Founding Fathers. Thank you. ity (e.g. 40 percent) for new 1 competitive en- from the NPIAS list in 1997, after it emerged trants. And by new competitive entrants, I as the frontrunner. Peotone had been on the HOUSE OF REPRESENTATIVES, do not mean affiliates of United and Amer- NPIAS for 12 years; (3) Hold up the Peotone Washington, DC. ican. environmental review from 1997 to 2000. STATEMENT OF U.S. REPRESENTATIVE JESSE In short, the same parties who created this L. JACKSON, JR. BEFORE THE U.S. SENATE STATEMENT OF U.S. REPRESENTATIVE JESSE aviation mess are now saying ‘‘trust us to L. JACKSON, JR. BEFORE THE U.S. HOUSE COMMERCE COMMITTEE THURSDAY, MARCH clean it up’’ with H.R. 2107. But their hands 21, 2002. AVIATION SUBCOMMITTEE—WEDNESDAY, AU- are too dirty and their interests are too nar- GUST 1ST, 2001 WASHINGTON DC row. Proponents of this legislation claim to I want to commend and thank Members of I want to thank Members of the House be taking the high road. But this is a dead the Committee on Commerce, Science and Aviation Subcommittee for this opportunity end. Transportation for this opportunity to again to discuss Chicago’s aviation future. As you Fortunately, there is a better alternative. discuss the future of Chicago’s airports. As may know, I ran on this issue in 1995, and Compared to O’Hare expansion, Peotone you know, I sent a letter to each of you stat- have supported expanding aviation capacity could be built in one-third the time at one- ing my opposition to this bill. Many Mem- by building a third regional airport in third the cost—both important facts given bers responded favorably, and for that I Peotone, Illinois. that the crisis is imminent and that the pub- thank them. Today, my position has not Let me begin with a personal anecdote lic will ultimately pay for any fix. changed. that, from my perspective, illustrates why Site selection aside, however, there is yet As you know, my commitment to resolving we’re here. I won my first term in a special another, even bigger problem with H.R. 2107. Chicago’s aviation capacity crisis predates election and on December 14th, 1995 took the It is the United States Constitution. my days in Congress. I ran on this issue in Oath of Office. Congressman Lipinski, my H.R. 2107 strips Illinois Governor George my first campaign. I won on this issue. It re- good friend and fellow Chicagoan whose dis- Ryan of legitimate state power in an appar- mains my first priority. It was the subject of trict borders mine, was present and his was ent violation of the ‘‘reserved powers’’ clause my first speech in Congress. And it was the the seventh or eighth hand I shook as a new of the 10th Amendment. topic of my first debate in Washington. Member. He told me then: ‘‘Young man, I Under the 10th Amendment, Congress can- I am elated that this issue—my issue—is want you to know that I can be very helpful not command Illinois to affirmatively under- now before the Congress. And while I thank to you during your stay in Congress, but take an activity, nor can it intrude upon Illi- Members of the Senate for their interest in you’re never going to get that new airport nois’ prerogative to exercise or delegate its trying to resolving this regional and na- you spoke about during your campaign.’’ power. As stated by the United States Su- tional crisis, I must say that HR 3479 as Since then, Congressman Lipinski has been preme Court: ‘‘[T]he Framers explicitly amended falls woefully short of providing an helpful and we’ve worked together on many chose a Constitution that confers upon Con- adequate, equitable solution. important issues. But, he’s also made good gress the power to regulate individuals, not Please know that I do not oppose fixing on his word to block a third airport. States . . . . We have always understood that O’Hare’s problems. But I have many, many It is this rigid stance by many Chicago of- even where Congress has the authority under grave concerns about this specific expansion ficials that’s allowed a local problem to esca- the Constitution to pass laws requiring or plan. Concerns about cost. About safety. late into a national crisis. Once the nation’s prohibiting certain acts, it lacks the power About environment impact. About federal best and busiest crossroads, O’Hare is now its directly to compel the States to require or precedence. And about constitutionality. worst choke point—overpriced, overburdened prohibit those acts.’’ [New York v. United Clearly this bills sets dangerous prece- and overwhelmed. States, 1992] [2] dence by stating that Congress—not the

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00087 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.090 pfrm09 PsN: H23PT1 H5178 CONGRESSIONAL RECORD — HOUSE July 23, 2002 FAA, not Departments of Transportation, CRS concludes that the bill ‘‘provides for choose to follow the Congressional direction. not aviation experts—but Congress shall the Administrator’s review of the Peotone Congress possesses inherent authority to plan and built airports. Further, it ignores Airport project (and) provides for the expan- oversee the project, as well as the Adminis- the 10th Amendment to the U.S. Constitu- sion of O’Hare. The provisions appear to op- trator’s compliance with the statutory re- tion. It guts and/or undermines state laws erate independently of each other and are quirements, by way of its oversight and ap- and environmental protections. And it side- not drafted in parallel language, and provide propriations functions. Congress and con- steps the checks-and-balances and the public different directions to the Administrator.’’ gressional committees have virtually ple- hearing process. nary authority to elicit information which is My focus today is the same as it’s always CONGRESSIONAL RESEARCH SERVICE, necessary to carry out their legislative func- been. Finding the best fix. And that best fix February 6, 2002. tions from executive agencies, private per- is the construction of a third Chicago airport MEMORANDUM sons, and organizations. Various decisions of near Peotone, Illinois. The plain truth is Subject Examination of Certain Provisions the Supreme Court have established that the Peotone could be built in one-third the time of H.R. 3479: National Aviation Capacity oversight and investigatory power of Con- at one-third the cost. For taxpayers and Expansion Act. gress is an inherent part of the legislative travelers, it’s a no-brainer. function and is implied from the general Unfortunately, this bill mandates expan- To: Hon. Jesse L. Jackson, Jr., Attention: George Seymour vesting of the legislative power in Congress. sion of O’Hare yet pays mere lip service to Thus, courts have held that Congress’ con- Peotone. It puts the projects on two separate From: Douglas Reid Weimer, Legislative At- stitutional authority to enact legislation and unequal tracks. That is my opinion. torney, American Law Division. and appropriate money inherently vests it That is also the opinion of the Congressional BACKGROUND with power to engage in continuous over- Research Service, whose analysis I will pro- This memorandum summarizes various sight. The Supreme Court has described the vide to you. telephone discussions between George Sey- scope of this power of inquiry as to be ‘‘as What we don’t need at this critical junc- mour and Rick Bryant of your staff, and penetrating and far-reaching as the potential ture is favoritism or interference from poli- Douglas Weimer of the American Law Divi- power to enact and appropriate under the ticians and profit-oriented airlines to stack sion. Your staff has expressed interest in cer- Constitution.’’ the deck against Peotone. What we don’t tain provisions of H.R. 3470, the proposed Na- Specific interest is focused on the language need is a bill that increases the likelihood of tional Aviation Capacity Expansion Act ‘‘shall consider’’ used in the second sentence a constitutional challenge that prolongs the (‘‘bill’’). These provisions are examined and of the subsection. In the context of this sub- debate and delays the fix. analyzed in the following memorandum. section, it should not necessarily be consid- Thus, I urge you to reject this unprece- The bill contains various provisions relat- ered to mean the implementation of an ac- dented, unwise, and unconstitutional bill. In- ing to the expansion of aviation capacity in celerated approval/construction process for stead, I urge you to treat O’Hare and the Chicago area. Among the provisions con- the airport. While these events may occur, Peotone on equal terms and to avoid stack- tained in the bill are provisions relating to such a course of action is not specifically ing the deck for or against either project. Fi- O’Hare International Airport (‘‘O’Hare’’), provided by the legislation. nally, I urge you to consider substantive im- Meigs Field, a proposed new carrier airport Your staff has also focused on subsection provements to this bill that would allow— located near Peotone, Illinois (‘‘Peotone’’), (f), dealing with the proposed federal con- not impair—Peotone to proceed on its own and other projects. Your office has expressed struction at O’Hare. The bill provides: merits, free of political interference. repeated concern that the news media and (f) FEDERAL CONSTRUCTION.— If you do, I am confident that Peotone will various commentators have reported that (1) On July 1, 2004, or as soon as practicable prove to be the cheaper, quicker, safer, the bill would apparently implement the var- thereafter, the Administrator shall con- cleaner, more practical and more permanent ious projects in a similar manner and that struct the runway redesign plan as a Federal solution to the region’s and nation’s aviation similar legislative language is used to imple- project, if— capacity needs. Thank you. ment the various projects. The news articles (A) the Administrator finds, after notice that you have cited to concerning the bill and opportunity for public comment, that a HOUSE OF REPRESENTATIVES, tend to report the various elements of the continuous course of construction of the run- Washington, DC., Wednesday, February 6, bill without distinguishing the bill language way design plan has not commenced and is 2002. and the differences as to the means in which not reasonably expected to commence by De- FEDERAL STUDY CONFIRMS AIRPORT DEAL the various projects may be implemented. cember 1, 2004; SHORTCHANGES PEOTONE (B) Chicago agrees in writing to construc- ANALYSIS An analysis released today by the inde- tion of the runway redesign plan as a Federal pendent, non-partisan research arm of Con- The chief purpose of the bill is to expand project without cost to the United States, gress confirmed what Peotone proponents aviation capacity in the Chicago area, except such funds as may be authorized have said all along: The Ryan-Daley airport through a variety of means. Section 3 of the under chapter 471 of title 49, United States agreement puts O’Hare on the fast track and bill deals with airport redesign and other Code, under authority of paragraph (4); just pays lip service to Peotone. issues. Your staff has focused upon the inter- (C) Chicago enters into an agreement, ac- An analysis released today by the Congres- pretation and the bill language of two par- ceptable to the Administrator, to protect the sional Research Service concludes that the ticular subsections—(e) and (f)—of Section 3, interests of the United States Government proposed National Aviation Capacity Expan- which are considered below. with respect to the construction, operation, sion Act puts the two projects on separate (e) SOUTH SUBURBAN AIRPORT FEDERAL and maintenance of the runway redesign and unequal tracks. FUNDING.—The Administrator shall give pri- plan; The CRS analysis states that the Federal ority consideration to a letter of intent ap- (D) the agreement with Chicago, at a min- Government ‘‘shall construct the runway re- plication submitted by the State of Illinois imum provides for Chicago to take over own- design plan’’ at O’Hare but would merely or a political Subdivision thereof for the ership and operations control of each ele- ‘‘review’’ and give ‘‘consideration’’ to the construction of the south suburban airport. ment of the runway redesign plan upon com- Peotone Airport project. The Administrator shall consider the letter pletion of construction of such element by In reaction to the release of today’s report, not later than 90 days after the Adminis- the Administrator; Congressman Jackson reiterated his opposi- trator issues final approval of the airport (E) Chicago provides, without cost to the tion to the measure. ‘‘This study unmasks layout plan for the south suburban airport . United States Government (except such the bare truth about the agreement between If enacted, this bill language would relate funds as may be authorized under chapter 471 the Mayor and the Governor. For those to the federal funding for the proposed air- of title 49, United States Code, under the au- claiming that the deal is good for the Third port to be constructed at Peotone. The ‘‘Ad- thority of paragraph (4)), land easements, Airport, it’s not. The masquerade ball is ministrator’’ refers to the Administrator of rights-of-way, rights of entry, and other in- over,’’ Jackson said. the Federal Aviation Administration. The terests in land or property necessary to per- ‘‘Peotone has been stuck in the paralysis Administrator is directed to give priority mit construction of the runway redesign of analysis for 15 years. We don’t need any consideration to a letter of intent applica- plan as a Federal project and to protect the more reviews. We need a Third Airport, ‘‘ tion (‘‘application’’) submitted by Illinois, or interests of the United States Government in Jackson said. ‘‘Peotone can be built faster, a political subdivision for the construction its construction, operation, maintenance, cheaper, safer, and cleaner than expanding of the ‘‘south suburban airport,’’ the pro- and use; and O’Hare, and presents a more secure and more posed airport at Peotone. (F) the Administrator is satisfied that the permanent solution to Illinois’ aviation cri- The Administrator is given specific direc- costs of the runway redesign plan will be sis. This is shortsighted legislation and a bad tions concerning the application and for the paid from sources normally used for airport deal for the public.’’ time consideration of the application. Con- development projects of similar kind and The CRS report states that the Lipinski- cern has been expressed that the Adminis- scope. Durbin bill ‘‘specifically states that the trator is given certain duties and directions, (2) The Administrator may make an agree- (FAA) Administrator ‘shall construct’ the but that there is no specific language to en- ment with the City of Chicago under which runway redesign plan; however, there is no sure and/or to compel that the Adminis- Chicago will provide the work described in parallel language regarding the construction trator will comply with the Congressional paragraph (1), for the benefit of the Adminis- of the south suburban airport.’’ mandate, if the Administrator does not trator.

VerDate 11-MAY-2000 06:23 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00088 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.066 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5179 (3) The Administrator is authorized and di- agency’s action/inaction. The Administra- vote and urge your continued opposition to rected to acquire in the name of the United tive Procedure Act (‘‘APA’’) provides general H.R. 3479! States all land, easements, rights-of-way, guidelines for determining the proper court Sincerely, rights of entry, or other interests in land or in which to seek relief. Some statutes pro- JESSE L. JACKSON, Jr. property necessary for the runway redesign vide specific review proceedings for agency Member of Congress. plan under this section, subject to such actions. Subsection (h) of the bill provides terms and conditions as the Administrator for judicial review of an order issued by the HOUSE OF REPRESENTATIVES, deems necessary to protect the interests of Administrator. The bill provides that the bill Washington, DC., December 13, 2001. the United States. may be reviewed pursuant to the provisions Hon. EDWARD M. KENNEDY, (4) Chicago shall be deemed the owner and contained at 49 U.S.C. § 46110. United States Senate, Washington, DC. operator of each element of the runway re- If the Administrator does not issue an DEAR SENATOR KENNEDY: In the next few configuration plan under section 40117 and order and judicial review is not possible days and months, you may be asked to co- chapter 471 of title 49, United States Code, under this provision, then it is possible that sponsor S. 1786, a bill to massively expand notwithstanding any other provision of this ‘‘nonstatutory review’’ may occur. When O’Hare International Airport in Chicago. I section or any of the provisions in such title Congress has not created a special statutory strongly oppose this legislation, which in my referred to in this subsection. procedure for judicial review, an injured view, is severely flawed, deeply divisive, con- The Administrator is directed to construct party may seek ‘‘nonstatutory review.’’ This stitutionally suspect, environmentally un- the O’Hare runway plan as a Federal project review is based upon some statutory grant of sound, unnecessarily wasteful and dan- if certain conditions are met: (1) construc- subject matter jurisdiction. Therefore, a gerous. tion of the runway design plan has not begun party who wants to invoke nonstatutory re- For the past six years, I have been working and is not expected to begin by December 1, view will look to the general grants of origi- on an alternative proposal to increase avia- 2004; (2) Chicago agrees to the runway plan nal jurisdiction that apply to the federal tion capacity in the Chicago area—building a as a Federal project without cost to the courts. It is possible that an available basis third regional airport. Rather than ripping United States, with certain exceptions; (3) for jurisdiction in this case—if the Adminis- up and reconstructing runways at O’Hare, a Chicago enters into an agreement to protect trator does not carry out his/her Congres- new airport near Peotone, Illinois provides a Federal Government interests concerning sional mandate—may be under the general cheaper, quicker, and cleaner solution. Able to be built in one-third the time and construction, operation, and maintenance of federal question jurisdiction statute which at one-third the cost of the proposed O’Hare the runway project; (4) the agreement pro- authorizes the federal district courts to en- expansion, a third airport would be a more vides that Chicago take over the ownership tertain any case ‘‘arising under’’ the Con- secure and more permanent solution to the and operation control of each element of the stitution or the laws of the United States. region’s aviation crisis. It also would create runway design plan upon its completion; (5) An action for relief under this provision is 236,000 jobs, generate $10 Billion in new eco- Chicago provides, without cost, the land, usually the most direct way to obtain non- nomic activity, revitalize depressed commu- easements, right-of-way, rights of entry, and statutory review of an agency action. Hence, nities, foster balanced economic growth, en- other interests in land/property as are re- it is possible that an action could be brought hance airline competition, and drive down quired to allow the construction of the run- under this statute to compel the Adminis- ticket prices. Simply put, a new airport way plan as a Federal project and to protect trator to comply with the provisions con- tained in the bill. makes good dollars and good sense for the the interests of the Federal Government in City of Chicago, the State of Illinois and the CONCLUSION its construction, operation, maintenance, entire nation. and use; and (6) the Administrator is satis- This memo has summarized staff discus- Thus, I ask that you oppose S. 1786. How- fied that the redesign plan costs will be paid sion concerning certain provisions contained ever, if you are considering supporting the from the usual sources used for airport de- in the proposed National Aviation Capacity bill, I respectfully request that you allow me velopment projects of similar kind and Expansion Act. Subsection (e) provides for an opportunity to share my views with you. scope. the Administrator’s review of the Peotone I can be reached at 225–0773. Thank you in Paragraph 2 provides that the Adminis- Airport project. Subsection (f) provides for advance for your consideration and I look trator ‘‘may’’ make an agreement with Chi- the expansion of O’Hare. The provisions ap- forward to speaking with you. cago, whereby Chicago will provide the work pear to operate independently of each other, Sincerely, described above in paragraph (1) for the ben- are not drafted in parallel language, and pro- JESSE L. JACKSON, Jr., efit of the Administrator. It should be noted vide different directions to the Adminis- Member of Congress. that the use of the word ‘‘may’’ would appear trator. The Administrator is given certain to make this language optional, and would responsibilities under both subsections. Con- HOUSE OF REPRESENTATIVES, not necessarily require the Administrator to gress possesses plenary oversight authority Washington, DC., July 24, 2001. enter into such agreement with Chicago. over federally funded projects. This would Hon. DON YOUNG, Paragraph 3 authorizes and directs the Ad- provide oversight Administrator is given cer- Chairman, Transportation and Infrastructure ministrator to acquire in the name of the tain responsibilities under both subsections. Committee, Washington, DC. Federal Government those property interests Congress possesses plenary oversight author- DEAR CONGRESSMAN YOUNG: I am writing to needed for the redesign plan, subject to the ity over federally funded projects. This you about the grave concerns I have with terms and conditions that the Administrator would provide oversight over the Adminis- H.R. 2107, The End Gridlock at Our Nation’s feels are necessary to protect the interests of trator and his/her actions. A judicial pro- Critical Airports Act of 2001. I share the con- the United States. ceeding may be possible against the Admin- cerns of Congressmen Henry Hyde, Jerry Paragraph 4 provides that Chicago will be istrator to compel the Administrator to ful- Weller and Philip Crane, who have sent a vir- deemed to be the owner and operator of each fill the statutory responsibilities provided by tually identical letter to you under separate element of the runway reconfiguration plan, the bill. cover. I agree that in H.R. 2107—the attempt notwithstanding any other provision of this to rebuild and expand O’Hare Airport—Con- section. July 22, 2002. gress is inappropriately violating the Tenth Discussion has focused on the different leg- Hon. MAXINE WATERS, Amendment. islative language used in subsection (e) and House of Representatives, Washington, DC. In other contexts—specifically with regard (f). Subsection (f) specifically states that the DEAR REPRESENTATIVE WATERS, I would to certain human rights—I believe that the Administrator ‘‘shall construct’’ the runway like to personally thank you for opposing Tenth Amendment serves to place limita- redesign plan; however, there is no parallel H.R. 3479, The National Capacity Expansion tions on the federal government with which language regarding the construction of the Act. This is an extremely controversial bill, I disagree. Indeed, in the area of human south suburban airport in subsection (e). The and it was totally inappropriate for it to be rights, I believe new amendments must be provisions of the subsections appear to be included on the suspension calendar. added to the Constitution to overcome the independent of each other and provide very There is no dispute that there is an air ca- limitations of the Tenth Amendment. How- different directions to the Administrator. pacity crisis at the Chicago O’Hare Inter- ever, building airports is not a human right. Hence, it may be interpreted that subsection national Airport. There is a dispute over how Therefore, in the present context, I agree (f) would authorize runway construction (if to resolve it. We believe that building that building airports is appropriately with- certain conditions are met), and subsection Peotone is a quicker, cheaper, safer, cleaner, in the purview of the states. (e) is concerned primarily with the review more permanent, and more just way to re- I believe attempts by Congress to strip the and the consideration of an airport construc- solve the aviation capacity crisis, authority of Governor Ryan and the Illinois tion plan. As you know, this bill also sets a dan- Legislature over the delegation and author- It is possible that the Administrator’s ac- gerous precedent by allowing the federal ization to Chicago of state power to build tions concerning the implementation of this government to preempt an Illinois state law airports—along with the authority of gov- legislation, if enacted, may be subject to ju- that requires state legislative approval of ernors and state legislatures in a host of dicial review. Judicial review of agency ac- airport construction and expansion. Will other states such as Massachusetts (Logan), tivity or inactivity provides control over ad- your state legislature be next to lose its New York (LaGuardia and JFK), New Jersey ministrative behavior. Judicial review of power to decide local airport matters? (Newark) California (San Francisco airport), agency action/inaction may provide appro- With your assistance, the misguided efforts and the State of Washington (Seattle)—raise priate relief for a party who is injured by the of H.R. 3479 were defeated. I appreciate your serious constitutional questions.

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00089 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.070 pfrm09 PsN: H23PT1 H5180 CONGRESSIONAL RECORD — HOUSE July 23, 2002 Under the framework of federalism estab- It is important to note that Congress can leaving Chicago without delegated state leg- lished by the federal constitution, Congress regulate—but not affirmatively command— islative authority to build runways and ter- is without power to dictate to the states how the states when the state decides to engage minals at O’Hare or Midway. The require- the states delegate power—or limit the dele- in interstate commerce. See Reno v. Condon, ment that Chicago receive a state permit is gation of that power—to their political sub- 528 U.S. 141 (2000). Thus in Reno, the Court an express condition of the grant of state au- divisions. Unless and until Congress decides upheld an act of Congress that restricted the thority and an attempt by Congress to re- that the federal government should build air- ability of the state to distribute personal move that condition or limitation would ports, airports will continue to be built by drivers’ license information. But Reno did mean that there was no continuing valid states or their delegated agents (state polit- not involve an affirmative command of Con- state delegation of authority to Chicago to ical subdivisions or other agents of state gress to a state to affirmatively undertake build airports. Chicago’s attempts to build power) as an exercise of state law and state an activity desired by Congress. Nor did new runways would be ultra vires under power. Further compliance by the political Reno involve (as proposed here) an intrusion state law as being without the required state subdivision of the oversight conditions im- by the federal government into the delega- legislative authority. posed by the State legislature as a condition tion of state power by a state legislature— Very truly yours, of delegating the state law authority to and the state legislature’s express limits on JESSE L. JACKSON, JR., build airports is an essential element of that that delegation of state power—to a state po- Member of Congress. delegation of state power. If Congress strips litical subdivision. away a key element of that state law delega- H.R. 2107 would involve a federal law which HOUSE OF REPRESENTATIVES, tion, it is highly unlikely that the political would prohibit a state from restricting or Washington, DC., January 31, 2001. subdivision would continue to have the limiting the delegated exercise of state Re Key Points Why The Chicago Region power to build airports under state law. The power by a state’s political subdivision. In Needs A New Airport—And Why New political subdivision’s attempts to build run- this case, the proposed federal law would O’Hare Runways Are Contrary To The ways would likely be ultra vires (without au- seek to bar the Illinois Legislature from de- Region and Nation’s Best Interests thority) under state law. ciding the allocation of the state’s power to Hon. ANDREW H. CARD, Under the Tenth Amendment and the build an airport or runways—and especially Chief of Staff to the President, framework of federalism built into the Con- the limits and conditions imposed by the The West Wing, 1st Floor, stitution, Congress cannot command the State of Illinois on the delegation of that The White House, States to affirmatively undertake an activ- power to Chicago. The law is clear that Con- Washington, DC. ity. Nor can Congress intrude upon or dic- gress has no power to intrude upon or inter- DEAR ANDY: A matter of great importance tate to the states, the prerogatives of the fere with a state’s decision as to how to allo- to us is the need for safe airport capacity ex- states as to how to allocate and exercise cate state power. pansion in the metro Chicago region. At state power—either directly by the state or A state’s authority to create, modify, or your earliest convenience, we would like to by delegation of state authority to its polit- even eliminate the structure and powers of schedule a meeting with you and Secretary ical subdivisions. the state’s political subdivisions—whether Mineta to discuss the situation. Enclosed is As stated by the United States Supreme that subdivision be Chicago, Bensenville, or a detailed memorandum summarizing our Court: views. We are convinced that we must build [T]he Framers explicitly chose a Constitu- Elmhurst—is a matter left by our system of a new regional airport now and, for the same tion that confers upon Congress the power to federalism and our federal Constitution to reasons, we believe that construction of one regulate individuals, not States....We have the exclusive authority of the states. As or more new runways at O’Hare would be always understood that even where Congress stated by the Seventh Circuit in Commis- harmful to the public health, economy and has the authority under the Constitution to sioners of Highways v. United States, 653 environment of the region. pass laws requiring or prohibiting certain F.2d 292 (7th Cir. 1981) (quoting Hunter v. As set forth in that memorandum: acts, it lacks the power directly to compel City of Pittsburgh, 207 U.S. 161, 178 (1907)): Municipal corporations are political sub- Most responsible observers agree that the the States to require or prohibit those acts. Chicago region needs major new runway ca- New York v. United States, 505 U.S. 144, at divisions of the State, created as convenient agencies for exercising such of the govern- pacity now. 166 (1992) (emphasis added). The question is where to build that new It is incontestable that the Constitution mental powers of the State as may be en- runway capacity—(1) at a new regional air- established a system of ‘‘dual sovereignty.’’ trusted to them. For the purpose of exe- port, (2) at O’Hare, (3) at Midway, or (4) a Printz v United States, 521 U. S. 898, 918 cuting these powers properly and efficiently combination of all of the above. An assess- (1997) (emphasis added). they usually are given the power to acquire, ment of these alternatives reaches the fol- Although the States surrendered many of hold, and manage personal and real property. their powers to the new Federal Govern- lowing conclusions: The number, nature and duration of the pow- 1. The new runways can be built faster at ment, they retained ‘‘a residuary and invio- ers conferred upon these corporations and a new airport as opposed to O’Hare or Mid- lable sovereignty,’’ The Federalist No. 39, at the territory over which they shall be exer- way. 245 (J. Madison). This is reflected throughout cised rests in the absolute discretion of the 2. More new runway capacity can be built the Constitution’s text. State.... The State, therefore, at its pleasure at a new site than at O’Hare or Midway. Residual state sovereignty was also im- may modify or withdraw all such powers, 3. The new runways can be built at far less plicit, of course, in the Constitution’s con- may take without compensation such prop- cost at a new airport than at O’Hare or Mid- ferral upon Congress of not ail governmental erty, hold it itself, or vest it in other agen- way. powers, but only discrete, enumerated ones, cies, expand or contract the territorial area, 4. Construction of the new capacity at a Art. 1, Sec. 8, which implication was ren- unite the whole or a part of it with another new airport will have far less impact on the dered express by the Tenth Amendment’s as- municipality, repeal the charter and destroy environment and public health than would sertion that ‘‘[t]he powers not delegated to the corporation. All this may be done, condi- expansion of either Midway or O’Hare. the United States by the Constitution, nor tionally or unconditionally, with or without 5. Construction of the new capacity at a prohibited by it to the States, are reserved the consent of the citizens, or even against new airport offers the best opportunity to to the States respectively, or to the people.’’ their protest. In all these respects the State bring major new competition into the region. Id at 918–919. is supreme, and its legislative body, con- 6. The selected alternative cannot be ex- This separation of the two spheres is one of forming its action to the state constitution, pansion at O’Hare and construction of a new the Constitution’s structural protections of may do as it will, unrestrained by any provi- airport. New runways at O’Hare would doom liberty. ‘‘Just as the separation and inde- sion of the Constitution of the United the economic feasibility of the new airport, pendence of the coordinate branches of the States. guarantee its characterization as a ‘‘white Federal Government serve to prevent the ac- elephant’’ and insure the expansion of the COMMISSIONERS OF HIGHWAYS, 653 F.2D AT 297 cumulation of excessive power in any one monopoly dominance of United and Amer- branch, a healthy balance of power between Chicago has acknowledged that Illinois has ican Airlines in the Chicago market. the States and the Federal Government will delegated its power to build and operate air- The memorandum contains a series of re- reduce the risk of tyranny and abuse from ei- ports to its political subdivisions by express lated questions and a detailed list of sugges- ther front. statutory delegation. 65 ILCS 5/11–102–1, 11– tions that would ensure the rapid develop- ld at 921 quoting Gregory v. Ashcroft, 501 102–2 and 11–102–5. These state law delega- ment of major new runway capacity in the U.S. 452 at 458 (1991). tions of the power to build airports and run- Chicago region, open the region to major The Supreme Court in Printz went on to ways are subject to the Illinois Aeronautics new competition, and accomplish these ob- emphasize that this constitutional struc- Act requirements—including the require- jectives in a low-cost, environmentally tural barrier to the Congress intruding on ment that the State approve any alterations sound manner. the State’s sovereignty could not be avoided of the airport—by their express terms. Any Again, we would appreciate the oppor- by claiming either a) that the congressional attempt by Congress to remove a condition tunity to discuss these matters with you and authority was pursuant to the Commerce or limitation imposed by the Illinois Legisla- Secretary Mineta at your earliest conven- Power and the ‘‘necessary and proper clause ture on the terms of that state law delega- ience. of the Constitution or b) that the federal law tion of authority would likely destroy the Very truly yours, ‘‘preempted’’ state law under the Supremacy delegation of state authority to build air- HENRY HYDE. Clause. 521 U.S. at 923–924. ports by the Illinois Legislature to Chicago JESSE JACKSON, Jr.

VerDate 11-MAY-2000 06:23 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00090 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.074 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5181 Re Key Points Why Chicago Region Needs A vs. building the new capacity at O’Hare or guarantees that the new airport will be a New Airport—And Why New O’Hare Run- Midway. ‘‘white elephant’’—much as the Mid-America ways Are Contrary To The Region and 4. Construction of the new capacity at a airport near St. Louis is today because of the Nation’s Aviation Best Interests new airport will have far less impact on the Fortress Hub practices of the major airlines To: White House Chief of Staff Andrew Card environment and public health than would and as was Dulles International as long as From: Congressman Henry Hyde, Congress- expansion of either Midway or O’Hare. Mid- Washington National was allowed to grow. man Jesse Jackson, Jr. way, and later O’Hare, were sited and built With limits on the growth of National finally January 31, 2001 at a time when concerns over environment recognized, Dulles is now the thriving East This memorandum summarizes our views and public health were far less than they are Coast Hub for United. in the debate over the need for airport capac- today. As a result, both existing airports RELATED QUESTIONS ity expansion in the metro Chicago region. have virtually no ‘‘environmental buffer’’ be- If the Region needs new runways, what is For the reasons set forth herein, we are con- tween the airports and the densely populated the sense of spending over several billion vinced that we must build a new regional communities surrounding these airports. In dollars—much of it public money—to build airport now and, for the same reasons, be- contrast, the site of the new South Suburban the World Gateway Program at O’Hare if we lieve that construction of one or more new Airport has, by design, a large environ- decide that new runway capacity should be runways at O’Hare would be harmful to the mental buffer which will ameliorate most, if built elsewhere? If the decision is to build public health, economy and environment of not all, of the environmental harm and pub- the new runways at O’Hare, then much of the the region. lic health risk from the site. Indeed, pru- 5–6 billion dollar terminal and roadway ex- The debate can best be summarized in a dence would suggest an even larger environ- pansion proposed for O’Hare may be justi- simple question and answer format. mental buffer around the South Suburban fied. Does the Region need new runway capacity site than is now contemplated. We can create But if the decision is that the new runway now? Unlike The City of Chicago—which has the same or similar environmental buffer capacity should be built elsewhere, then the for more than a decade privately known that around O’Hare or Midway—but only at a cost proposed multi-billion dollar O’Hare expan- the region needs new runway capacity while of tens of billions of dollars and enormous sion makes no sense. We will be spending bil- publicly proclaiming that new runway capac- social and economic disruption. ity is not needed—bipartisan leaders like 5. Construction of the new capacity at a lions of dollars in taxpayer funds for a mas- Jesse Jackson, Jr. and myself have openly new airport offers the best opportunity for sive project that standing alone—without acknowledged the need for, and urged the bringing major new competition into the re- new runways—will not add any new capacity construction of, new runway capacity in the gion. When comparing costs and benefits of to our region. region. alternatives, the Bush Administration must The airlines know this fact and that is why The need for new runway capacity is not a address the existing problem of monopoly (or they—and their surrogates at the Civic Com- distant phenomenon; we should have had duopoly) fares at ‘‘Fortress O’Hare’’ and the mittee and the Chicagoland Chamber—are new runway capacity built several years ago. economic penalty such high fares are inflict- pushing for new runways. If the Region needs new runways and we While 20 year growth projections of air trav- ing on the economic and business commu- wish to explore the alternative of putting el demand show that the harm caused by this nity in our region. Does the lack of signifi- the new runways in at O’Hare, what is the failure to build capacity will only get worse, cant competition allow American and United full cost of expanding O’Hare as opposed to the available information suggests that the to charge our region’s business travelers constructing a new airport? If others wish to region has already suffered serious economic higher fares than they could if there was sig- explore the alternative of an expanded harm for several years because of our past nificant additional competition in the re- O’Hare as the place to build the new runways failure to build the new runway capacity. gion? What is the economic cost to the re- capacity for the region, let’s have an honest If the answer to the runway question is gion—in both higher fares and lost business exploration and discussion of the full costs of yes—and we believe it is—the next question opportunities—of the existing ‘‘Fortress expanding O’Hare with new runways and is where to build the new runway capacity? O’Hare’’ business fare dominance of United compare it to the cost of building the new Though the issue has been discussed, the and American? media, Chicago and the airlines have failed The State of Illinois has stated that exist- airport. Chicago and the airlines already to openly discuss the alternatives as to ing ‘‘Fortress O’Hare’’ business fare domi- know what the components of an expanded where to build the new runway capacity— nance of United and American costs the re- O’Hare would be. These components are laid and especially, the issues, facts and impacts gion many hundreds of millions of dollars out in Chicago’s ‘‘Integrated Airport Plan to the pros and cons of each alternative. per year. Bringing in one or more significant and include a new ‘‘quad runway’’ system for The alternatives for new runway capacity competitors to the region would bring enor- O’Hare and additional ground access through in the region are straightforward: (1) build mous economic benefits in increased com- western access’’. new runways at a new airport, (2) build new petition and reduced fares. Based on information available, we believe runways at O’Hare, (3) build new runways at And the only alternative that has the room that the cost of the O’Hare expansion would Midway, or (4) a combination of all of the to bring in significant new competition is exceed ten billion dollars. These costs should above. Given these alternatives, the fol- the new airport. Certainly the design of Chi- be compared with the costs of a new airport. lowing facts are clear: cago’s proposed World Gateway program—de- Are the delay and congestion problems ex- 1. The new runways can be built faster at signed in concert with United and American perienced at O’Hare self-inflicted? Sadly, a new airport as opposed to O’Hare or Mid- to preserve and expand their dominance at when Chicago and the major O’Hare airlines way. Simply from the standpoint of physical O’Hare—does not offer opportunities for advocated lifting of the ‘‘slot’’ restrictions construction (as well as paper and regulatory major competitors to come in and compete at O’Hare and other major ‘‘slot’’ controlled planning) the new runways can be built fast- head-to-head with United and American. airports, the Clinton Administration and er at a ‘‘greenfield’’ site than they can at ei- 6. The selected alternative cannot be ex- others ignored the warnings of Congressman ther O’Hare or Midway. pansion at O’Hare and construction of a new Jackson, and myself that the airport could 2. More new runway capacity can be built airport. The dominant O’Hare airlines are not accommodate the additional flights at a new site than at O’Hare or Midway. pushing their suggestion: add another run- without a chaotic increase in delays and con- Given the space limitations of O’Hare and way at O’Hare and allow a ‘‘point-to-point’’ gestion. Indeed, the chaos we predicted has Midway, it is obvious that more new run- small airport to be built at the South Subur- come true and we now have a ‘‘Camp ways (and therefore more new runway capac- ban Site. O’Hare’’ where air traffic is managed by can- ity) can be built at a new larger greenfield That is not an acceptable alternative for cellation rather than by adequate service. site than at either O’Hare and Midway. We several reasons: Like Cassandra, our prophecy was ignored. acknowledge that additional space can be ac- First, it presumes massive growth at The Clinton Administration endorsed lifting quired at Midway or O’Hare by destroying O’Hare, as it is based on the assumption that the slot controls and chaos ensued. densely populated surrounding residential all transfer traffic growth—along with the But just because our warnings were ig- communities—but only at tremendous eco- origin-destination traffic to sustain the nored doesn’t mean that practical solutions nomic and environmental cost. transfer growth—stays at O’Hare. If that as- should continue to be ignored. The delays 3. The new runways can be built at far less sumption is accepted, the airlines already and congestion were predictable and cer- cost at a new airport than at O’Hare or Mid- know that demand growth for the traffic as- tain—predicted based on delay/capacity anal- way. Again, it is obvious that the new run- sumed to stay at O’Hare will necessitate not ysis conducted by the FAA. Just as certain ways—and their associated capacity—can be one, but two or more additional runways. are the short term remedies. built at far less cost at a ‘‘greenfield’’ site This increase in traffic at O’Hare will have Just as the congestion was brought on by than they can at either O’Hare or Midway. serious environmental and public health im- overstuffing O’Hare with more aircraft oper- Given the enormous public taxpayer re- pacts on surrounding communities. ations than it can handle, the congestion and sources that must be used for any of the al- Second, this alternative destroys the eco- delay can immediately be reduced to accept- ternatives—and the relative scarcity of pub- nomic justification for the new airport. With able levels by reducing the scheduled air lic funds—the Bush Administration should massive new capacity at O’Hare, there would traffic to the level that can be easily accom- compare the overall costs of building the be no economic need for the new airport. modated by O’Hare without the risk of unac- new runway capacity (and associated ter- Third, assuming the new airport is built ceptable delays. The delay chaos was self-in- minal and access capacity) at a new airport anyway, as a ‘‘compromise’’, this alternative flicted by ignoring the flashing warnings put

VerDate 11-MAY-2000 06:23 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00091 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.093 pfrm09 PsN: H23PT1 H5182 CONGRESSIONAL RECORD — HOUSE July 23, 2002 out by the FAA and other experts. The solu- lines in 98 downwind communities. The high- O’Hare and then to Washington D.C. than a tion can be easily administered by the FAA est levels of risk were found in those residen- Chicago based traveler who gets on the same recognizing—as it has at LaGuardia—that tial communities that O’Hare uses as its plane to Washington. Why? Because the limits must be placed on uncontrolled airline ‘‘environmental buffer’’ namely Park Ridge Springfield traveler has the choice of desire to overscheduled flights. and Des Plaines. hubbing either through O’Hare or St. Louis Should the short-term ‘‘fix’’ to the delays Is the Park Ridge study valid? Park Ridge while the Chicago based business traveler is and congestion include ‘‘capacity enhance- has challenged Chicago, the airlines, and fed- locked into Chicago. ment’’ through air traffic control devices? eral and state agencies to come forward with Where are the antitrust enforcers to break Absent new runways, the FAA has encour- any alternative findings as to the toxic air up these geographic cartels? Equally impor- aged and permitted a variety of operational pollution impact of O’Hare’s emissions on tant, in addition to antitrust enforcement devices designed to allow increased levels of downwind residential communities. And that powers, the federal government has enor- departures and arrivals in a set period of does not mean simply listing what comes out mous leverage to break up the cartels time. These procedures—known as ‘‘incre- of O’Hare. The downwind communities are through the funding approval process of the mental capacity enhancement’’—focus on entitled to know how much toxic pollution Airport Improvement Program (AIP) and putting moving aircraft closer together in comes out of O’Hare, where the toxic pollu- Passenger Facility Charge (PFC) programs. time and space—to squeeze more operations tion from O’Hare goes, what are the con- Yet billions of federal taxpayer funds go to into a finite amount of runways. Typically, centrations of O’Hare toxic pollution when it United and American without so much as a this squeezing is done in low visibility, bad reaches downwind residential communities, raised eyebrow. weather conditions because these are the and what are the health risks posed by those What about Noise? Shouldn’t we be happy conditions where FAA wants to increase ca- O’Hare pollutants at the concentrations in to exchange some soundproofing for new run- pacity. those downwind communities. ways at O’Hare? The City of Chicago has a While the air traffic controllers remain Should not something be done to control residential soundproofing program which mute on the safety concerns raised by these and reduce the already unacceptable levels was created on the advice of its public rela- procedures, the pilots surely have not: of toxic air pollution coming into downwind tions consultants to create a spirit of ‘‘com- We have seen the volume of traffic at residential communities from O’Hare’s cur- promise’’ that would lead to acceptance of O’Hare pick up and exceed anyone’s expecta- rent operations? new runways at O’Hare. tions, so much so, that on occasion mid-airs Should not the relative toxic pollution But here are some facts that are little pub- were only seconds apart. O’Hare is at max- risks to surrounding residential commu- licized: imum capacity, if not over capacity. It is my nities created by the alternatives of a new 1. Most of our residents feel that sound- opinion that it is only a matter of time until airport, expanding O’Hare, or expanding Mid- proofing—while improving their interior two airliners collide making disastrous head- way be added to the analysis and comparison quality of life—essentially assumes that we lines. of alternatives? will give up living-out-of-doors or with our Captain John Teerling, Senior AA Airline What about the monopoly problem at For- windows open in nice weather. Captain with 31 years experience flying out tress O’Hare and what should be done about 2. Whereas many major airport cities with of O’Hare January 1999 letter to Governor it? We have already alluded to the factor of residential soundproofing programs are Ryan (emphasis added) high monopoly fares as a consideration in soundproofing all homes experiencing 65 Paul McCarthy, ALPA’s [Airline Pilots As- choosing alternatives for new runway capac- DNIL (decibels day-night 24–hr. average) or sociation] executive air safety chairman, ity. But the monopoly problem of Fortress greater, Chicago and the airlines are only condemned the incremental capacity en- O’Hare will be relevant even if no new air- committing funds to the 70 DNL level. Re- hancements as threats to safety. Each one port is built. The entire design of the pro- sult: Chicago is only soundproofing less than puts a small additional burden on pilots and posed World Gateway Program is premised 10 percent of the homes that Chicago itself controllers, he said. Taken together, they re- on a terminal concept that solidifies and ex- acknowledges to be severely impacted. duce safety margins, particularly at mul- pands the current market dominance of 3. Chicago came into our communities ask- tiple runway airports, to the point that they United and American at O’Hare and in the ing to put in noise monitors to collect ‘‘real invite a midair collision, a runway incursion Chicago air travel market. world’’ data as to the levels of noise. Yet, de- or a controlled flight into terrain. What can the Bush Administration do if in- spite promises to share the data, Chicago re- Aviation Week, September 18, 2000 at p. 51 deed there is a monopoly air fare problem at fuses to share the data with our commu- (emphasis added) O’Hare or monopoly dominance is costing nities. It is clear that FAA’s constant attempts to Chicago area business travelers hundreds of 4. Instead of an atmosphere of trust, these squeeze more and more capacity out of the millions of dollars per year? tactics by Chicago have created additional existing overloaded runways—through such When these questions were raised in the animosity as neighbors on one side of an ‘‘enhancement’’ procedures as the recently Suburban O’Hare Commission report, If You alley or street get soundproofing while their announced ‘‘Compressed Arrival Procedures’’ Build It We Won’t Come: The Collective Re- neighbors across that alley or street get no and other ATC changes—is incrementally re- fusal Of The Major Airlines To Compete In soundproofing. Indeed, Chicago’s residential ducing the safety margin so cherished by the The Chicago Air Travel Market, Chicago and soundproofing program—because it is so lim- pilots and the passengers who have entrusted the airlines responded with smoke and mir- ited in scope and ignores thousands of ad- their safety to them. rors. First they produced glossy charts show- versely impacted homes—has caused even The answer to growth is new runways at a ing that more than 70 airlines serve O’Hare. more animosity in our communities. new airport—not jamming more aircraft What they neglected to show was that In short, residential soundproofing is not closer and closer together at O’Hare. The an- United and American control over 80% of the panacea that Chicago and many in the swer to delays and congestion with existing those flights with the remaining 60 plus air- downtown media perceive it to be. Moreover, overscheduled levels of traffic is to reduce lines operating only a small percentage. it does nothing to address the toxic air pollu- traffic levels to the capacity of the runways Similarly, the airlines and Chicago talked tion and other safety related concerns of our without the need to jam aircraft closer and about the competitive low fares charged to residents. closer together. passengers. What they emphasized, however, Can we have more than one ‘‘hub’’ airport Does the current level of operations at were low fares for reservations far in ad- operating in the same city? Faced with the O’Hare (and Midway) generate levels of toxic vance. The major business travel organiza- potential inevitability of a new airport, the air pollutants that expose downwind residen- tions representing business travel managers airlines for the last two years have been ar- tial communities to levels of these pollut- report that business travelers predominantly guing for an expansion of O’Hare (instead of ants in their communities at levels above use unrestricted coach fares since they have a major new airport) with the argument that USEPA cancer risk guidelines? Though our to respond on short notice to business needs. a metropolitan area cannot have more than residents have complained for years about An examination of fares for unrestricted one hub airport. Based on that premise, toxic air pollution from O’Hare, none of the business travel from Chicago to major busi- United and American say that the sole hub state and federal agencies would pay atten- ness markets shows that these routes are airport in metro Chicago should be O’Hare. tion. Recently however, Park Ridge funded a dominated by United and American and that That simply is not correct: study by two nationally known expert firms they charge extremely high ‘‘lock-step’’ 1. There are several domestic and inter- in the fields of air pollution and public fares to business travelers to these business national cities with more than one hubbing health to conduct a preliminary study of the markets. airport. Competing airlines create hubbing toxic air pollution risk posed by O’Hare. Finally, the airlines and Chicago argued operations wherever airport space is avail- That study, Preliminary Study and Analysis that O’Hare is ‘‘competitive’’ with fares able. Thus, there are multiple hubbing air- of Toxic Air Pollution Emissions From charged to business travelers in other For- ports in metro New York (JFK and Newark), O’Hare International Airport and the Result- tress Hub Markets. That statement ignores Washington D. C., London, and Paris. ant Health Risks Caused By Those Emissions the fact that all the major airlines are 2. The Lake Calumet Airport proposed by in Surrounding Residential Communities gouging captive business travelers in all Mayor Daley would have been a second hub (August 2000), found that current operations their own Fortress Hub markets. Indeed, a airport. at O’Hare—based on emission data supplied repeated anecdote is the fact that a pas- 3. There is simply no reason—given the size by Chicago created levels of toxic air pollu- senger from a ‘‘spoke’’ city—e.g., Spring- of the business and other travel origin-des- tion in excess of federal cancer risk guide- field, Illinois—pays a lower fare for a trip to tination market in metro Chicago—that a

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00092 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.094 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5183 new hub competitor could not establish a level consistent with the exiting capacity of opposition to the National Aviation Capacity major presence at a new south suburban air- the airport. Act. The issue of expansion of Chicago port. 7. Demand a break-up and reform of the O’Hare Airport is extremely important but How do we fund new airport construction? Fortress Hub anti-competitive phe- has been so misrepresented that I believe it The answer is simple and the same answer nomenon—both at O’Hare and at other For- is imperative to make a personal plea on be- Mayor Daley had for the proposed Calumet tress Hubs around the nation. This can be half of my local residents to each member of Airport. Daley proposed using a mix of PFC done with either aggressive antitrust en- the House of Representatives. This plan in and AIP funds to induce carriers to use the forcement or with proper oversight of the the form it has been presented to you con- new airport. Indeed, the entire justification disbursal of massive federal subsidies. tains gross misrepresentations of fact and for his urging the passage of PFC legislation 8. The entire World Gateway Program will inflict harm on the over 100,000 constitu- was to collect PFCs at O’Hare and use them should be examined in light of the questions ents I have taken an oath to protect. for the new airport. raised here and should be modified or aban- You may not realize that ‘‘Chicago’’ But United and American claim that the doned depending on the answers provided to O’Hare Airport is virtually an outcropping of PFC revenues are ‘‘their’’ money. On the these questions. land annexed by the City of Chicago that is contrary, the PFC funds are federal taxpayer We would appreciate the opportunity to over 90 percent surrounded by suburban mu- funds no different in their nature as tax- discuss these matters with you and Sec- nicipalities. It is the only major city airport payer dollars than the similar ‘‘AIP’’ tax retary Mineta at your convenience. where the people directly impacted by air- charged to air travelers. These funds don’t port activity do not elect the mayor or city belong to the airlines. They are federal funds CHICAGO URBAN LEAGUE, officials that make decisions about the air- collected and disbursed through a joint pro- Chicago, Illinois, June 27, 2002. port. Therefore, we have had little control or gram administered by the FAA and the air- Rep. WILLIAM O. LIPINSKI, recourse over what happens at the airport. port operator. Rayburn House Office Building, This plan represents a ‘‘deal’’ between two Nor are these federal taxpayer funds ‘‘Chi- Washington, DC. men and has never been debated or voted on cago’s’’ money. Chicago is simply a tax col- DEAR REPRESENTATIVE LIPINSKI: I am writ- by the Illinois General Assembly! lection agent for the federal government. ing to express my concern about your omis- My family moved to Park Ridge in 1955, But how do we get the funds from O’Hare sion of any special provision for a south sub- long before anyone had an idea of what an to the new airport? We do it the same way urban airport near Peotone from the O’Hare overpowering presence O’Hare would become. Mayor Daley is transferring funds from expansion legislation that you are intro- Unfortunately, the amount of land dedicated O’Hare to Gary and the same way he pro- ducing for consideration in the House of Rep- to the airport set its fate long before the cur- posed getting federal funds collected at resentatives. rent crisis. Plainly speaking, there isn’t O’Hare to the Lake Calumet project: a re- The expansion agreement reached last De- enough room to expand. gional airport authority. cember by Illinois Governor George Ryan For the past several years, I and other leg- and Chicago Mayor Richard Daley was the islators have introduced nearly a dozen SUGGESTIONS product of a long and difficult process of po- measures in the Illinois General Assembly to We have respectfully posed some questions litical negotiation. To reach this historic conduct environmental studies, provide tax and posited some answers for the President’s and comprehensive aviation agreement, it relief for soundproofing, defend suburban and your consideration. We believe that a was deemed essential to include a special neighborhoods from unfair ‘‘land grabs’’, re- thorough and candid examination and dis- measure giving priority consideration to fed- quire state legislative approval of any air- cussion of these questions leads to only one eral funding of airport development in port expansion and to generally protect the conclusion: we should build a new airport Peotone. people we represent whose residences abut and we should not expand O’Hare. Along with Governor Ryan, Mayor Daley, airport property. Because of the political But more than raising questions, we also and a host of state legislators, aldermen, and make-up of our body and the great influence have several concrete suggestions for ad- other civic and business leaders from the of Chicago’s mayor, we have been unsuccess- dressing the region’s air transportation Chicago area, I met last February with you ful. Our efforts and the health and safety of needs: and Senator Dick Durbin to plot a strategy our constituents are ignored because of poli- 1. Let’s stop the paper shuffling and build to secure federal funding to make O’Hare the tics. the new airport. The program we outline in airport hub of the nation. Our Chicago dele- this letter is virtually identical to the pro- gation of The Campaign to Expand National NATIONAL AIR TRAFFIC posal drafted by Mayor Daley for construc- Aviation Capacity left Washington, DC. with CONTROLLERS ASSOCIATION tion of the Lake Calumet Airport. We believe the understanding that you agreed that this Chicago, IL, November 30, 2001. that a cooperative fasttrack planning and goal would be best achieved through a bill Hon. PETER FITZGERALD, construction program for a new airport could that provides for a modernized and expanded U.S. Senate, Washington, DC. see the new airport open for service in 3–5 O’Hare and funding for a new airport in SENATOR FITZGERALD, As requested from years. Peotone. As our delegation indicated in Feb- your staff, I have summarized the most obvi- 2. The money, resources and legal author- ruary, both are needed, and both play impor- ous concerns that air traffic controllers at ity to build the new airport can be assembled tant roles in the Chicago region’s strongly O’Hare have with the new runway plans by passage of a regional airport authority linked aviation and economic futures. being considered by Mayor Daley and Gov- bill similar to the regional airport authority I know that you agree with the Campaign’s ernor Ryan. They are listed below along with bill drafted in 1992 by Mayor Daley for the belief that Chicago’s airports are key to the some other comments. Lake Calumet project. So the Illinois Gen- future of every citizen in Illinois. They are 1. The Daley and Ryan plans both have a eral Assembly is a necessary partner in any the economic engines that create jobs, pro- set of east/west parallel runways directly effort. But equally important is the domi- vide new business opportunities, and make north of the terminal and in close proximity nant role of the federal Administration in Chicago one of the world’s truly great cities. to one another. Because of their proximity controlling the use of AIP and PFC funds In the interest of maintaining a strong to each other (1200′) they cannot be used si- and in assertive enforcement of federal anti- Chicago and Illinois coalition in support of multaneously for arrivals. They can only be trust laws. Let’s put together a federal-state airport expansion in the Chicago area, I urge used simultaneously if one is used for depar- partnership to get the job done. you to revisit the discussions we had last tures and the other is used for arrivals, but 3. Give the O’Hare suburbs guaranteed pro- winter and to reconsider your omission of only during VFR (visual flight rules), or tection against further expansion of O’Hare. the Peotone provision. good weather conditions. During IFR (instru- Such guarantees are needed not only for our If you or your staff have any questions or ment flight rules, ceiling below 1000′ and vis- protection but for the viability of the new comments regarding the Chicago Urban ibility less than 3 miles) these runways can- regional airport. League’s position on this key issue, please do not be used simultaneously at all. They basi- 4. Provide soundproofing for all of the not hesitate to call me at 773–451–3500. cally must be operated as one runway for noise impacted residences around O’Hare and Sincerely, safety reasons. The same is true for the set Midway. The new airport addresses future JAMES W. COMPTON, of parallels directly south of the terminal; needs; it does not correct existing problems President and CEO. they too are only 1200′ apart. caused by existing levels of traffic. cc: Representative Jesse L. Jackson, Jr. 2. Both sets of parallel runways closest to 5. Initiate a regulatory program to control the terminal (the ones referred to above) are and reduce air toxic emissions from O’Hare. ROSEMARY MULLIGAN, all a minimum of 10,000′ long. This creates a 6. Fix the short-term delay and congestion STATE REPRESENTATIVE, 55TH DISTRICT, runway incursion problem, which is a very at O’Hare by returning to a recognition of ILLINOIS, serious safety issue. Because of their length the existing capacity limits of the airport. July 5, 2002. and position, all aircraft that land or depart The delay and congestion, now experienced SUBJECT: Vote ‘‘No’’ on H.R. 3479 O’Hare would be required to taxi across ei- at O’Hare is a self-inflicted wound brought Hon. JESSE L. JACKSON, JR., ther one, or in some cases two runways to about by airline attempts to stuff too many House of Representatives, Washington, DC. get to and from the terminal. This design planes into that airport. The delays and con- DEAR REPRESENTATIVE JACKSON, JR.: As an flaw exists in both the Daley and the Ryan gestion will be dramatically reduced imme- Illinois state legislator, I would like to use plan. A runway incursion is when an aircraft diately by reducing scheduled traffic to a this opportunity to express my concern and accidentally crosses a runway when another

VerDate 11-MAY-2000 06:50 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00093 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.096 pfrm09 PsN: H23PT1 H5184 CONGRESSIONAL RECORD — HOUSE July 23, 2002 aircraft is landing or departing. They are sulted in the planning of a new O’Hare. The future and can send their children to college, caused by either a mistake or mis-under- current Daley-Ryan runway plans, if built as too. Peotone also benefits the entire region, standing by the pilot or controller. Runway publicized, will do little for capacity and/or state and nation. incursions have skyrocketed over the past will create serious safety issues. This simply Even if H.R. 3479 becomes law, a federal few years and are on the NTSB’s most want- cannot happen. The fear is that the airport court is likely to find it unconstitutional ed list of safety issues that need to be ad- will be built, without our input, and then under the 10th Amendment, which gives cer- dressed. Parallel runway layouts create the handed to us with expectations that we find tain powers exclusively to the states, includ- potential for runway incursions; in fact the a way to make it work. When it doesn’t the ing the power to build and alter airports. FAA publishes a pamphlet for airport design- federal government (the FAA and the con- The U.S. Supreme Court stated in Printz vs. ers and planners that urge them to avoid trollers) will be blamed for safety and delay United States (1997) that ‘‘dual sovereignty’’ parallel runway layouts that force taxiing problems. is incontestable. It emphasized that the con- aircraft to cross active runways. Los Angeles Sincerely, stitutional structural barrier to Congress’ International airport has lead the nation in CRAIG BURZYCH, intruding on a state’s sovereignty could not runway incursions for several years. A large Facility Representative be avoided by claiming that congressional part of their incursion problem is the par- NATCA—O’Hare Tower authority was: (a) pursuant to the commerce allel runway layout; aircraft must taxi power—it will create 195,000 jobs and $19 bil- across runways to get to and from the termi- [From the Chicago Sun-Times, July 21, 2002] lion in economic activity; (b) the ‘‘necessary nals. BUILDING 3RD AIRPORT IS TOP PRIORITY NOW and proper’’ clause of the Constitution— 3. The major difference in Governor Ryan’s (By Rep. Jesse L. Jackson) there’s an aviation capacity crisis, or (c) counter proposal is the elimination of the that the federal law ‘‘preempted’’ state law southern most runway. If this runway were Unfortunately, the House defeat of the under the Supremacy Clause—that Congress eliminated, the capacity of the new airport O’Hare expansion bill last week has shifted can use its power to solve the impasses by would be less than we have now during cer- the debate from ‘‘substance’’ to ‘‘power.’’ overriding the state. In short, all the argu- tain conditions (estimated at about 40% of The focus now is on machismo: ‘‘Does [Rep. ments the Daley and Ryan forces have been the time). If you look at Mayor Daley’s plan, William] Lipinski have the power to ram a making are unconstitutional. it calls for six parallel east-west runways bill through Congress?’’ It is not on the real Both Mayor Daleys saw the aviation capac- and two parallel northeast-southwest run- issue: ‘‘Who has the best solution to the air ity crisis coming. Both proposed a third air- ways. The northeast-southwest parallels are capacity crisis?’’ port: one literally on Lake Michigan, the left over from the current O’Hare layout. All four sides in this dispute agree on the other in Lake Calumet. Both sites were in These two runways simply won’t be usable in analysis: There is an air capacity crisis at Cook County, controlled by the Daleys. How- day-to-day operations because of the loca- O’Hare. The disagreement comes over how to ever, when the most credible long-term tion of them (they are wedged in between, or resolve it. study recommended Peotone in Will County, Many suburbs around O’Hare, for a wide pointed at the other parallels). We would not Daley did an about face. use these runways except when the wind was variety of valid reasons, are absolutely Without the years of obstructionist tactics very strong (35 knots or above) which we es- against O’Hare expansion. They also believe by Mayor Richard M. Daley, protecting his timate would be less than 1% of the time. expanding O’Hare will make Peotone unnec- narrow and parochial interests, the south That leaves the six east/west parallels for essary. suburban airport would already be built and use in normal day-to-day operations. This is Mayor Daley and the downtown business today’s aviation crisis averted. the same number of runways available and and media community, who maniacally sup- A new airport in Peotone can still be built used at O’Hare today. If you remove the port O’Hare expansion and are attempting to in one-third of the time, at one-third of the southern runway (Governor Ryan’s counter ram it down the throats of everyone else—re- cost of O’Hare expansion, with less disrup- proposal), you are leaving us five runways gard less of who is opposed or why—also be- tion and environmental damage, greater pub- which is one less than we have now. That lieve it will kill Peotone. This inter- lic safety and more economic justice through means less capacity than today’s O’Hare dur- connected and elite group of business leaders balanced growth in the Chicago metropoli- ing certain weather conditions. With good and politicians has an interest in maintain- tan area. Why force through an irrational weather, you may get about the same capac- ing American’s and United Airlines’ duopoly bill when a more rational, effective and effi- ity we have now. If this is the case, then why at O’Hare, where ticket prices are one-third cient solution to the aviation capacity crisis build it? higher than the national average, costing is available now? 4. The Daley-Ryan plans call for the re- consumers an extra $1 billion. The mayor moval of the NW/SE parallels (Runways 32L also has an interest in maintaining his cam- [From the Chicago Sun-Times, Aug. 30, 2001] and 32R). This is a concern because during paign contributors, who, in many instances, the winter it is common to have strong are the same businesses connected at GRAVE CONCERNS NEAR O’HARE winds out of the northwest with snow, cold O’Hare’s hip. (By Robert C. Herguth) temperatures and icy conditions. During Others want to expand O’Hare and build American Indian remains that were ex- these times, it is critical to have runways Peotone simultaneously. However, Lipinski’s humed 50 years ago to make way for O’Hare that point as close as possible into the wind. bill removes Peotone as a priority—leaving Airport might have to be moved again to ac- Headwinds mean slower landing speeds for its proponents with little more than baseless commodate Mayor Daley’s runway expansion aircraft, and they allow for the airplane to hope and a prayer. plans. decelerate quicker after landing which is im- A final group, of which I’m a part, wants to That’s disturbing to some Native Ameri- portant when landing on an icy runway. build Peotone first, then revisit O’Hare ex- cans, who say they want their ancestors and Landing into headwinds makes it much easi- pansion later, because: (a) Peotone offers a relics treated with greater respect. er for the pilot to control the aircraft as faster, cheaper, cleaner, safer, more perma- And it’s prompting local opponents of the well. Without these runways, pilots would nent and just solution; and (b) an evolving proposed closure of two O’Hare cemeteries— have to land on icy conditions during strong Peotone airport, accommodating 1.6 million one of which has Indians—to explore whether cross-wind conditions. This is a possible safe- new flights, would surely make O’Hare ex- federal laws that offer limited protection to ty issue. pansion unnecessary. Native American burial sites and artifacts These are the four major concerns we have So why spend more money, take longer, in- could help them resist the city’s efforts. with the Daley-Ryan runway plans. There crease environmental problems, put the fly- ‘‘Maybe the federal law might come to our are many more minor issues that must be ing public in greater danger, support a tem- aid,’’ said Bob Placek, a member of addressed. Amongst them are taxiway lay- porary solution—once O’Hare expansion is Resthaven Cemetery’s board who estimates outs clear zones (areas off the ends of each complete, we will be in the same capacity 40 of his relatives, all German and German- runway required to be clear of obstructions), crisis as today—and increase the economic American, are buried there. ‘‘The dead folks ILS critical areas (similar to clear zones, but and racial divide in Chicago, when there is a out there aren’t obstructionists, they’re try- for navigation purposes), airspace issues better way of resolving the current aviation ing to rest in peace. . . . I feel it’s a desecra- (how arrivals and departures will be funneled capacity crisis? tion to move a cemetery. It’s a disregard for into those now runways) and all sorts of I’m not ignorantly against 195,000 new jobs our family’s history.’’ other procedural type issues. These kinds of and billions of dollars of investment on the Resthaven is a resting place for European things all have to go through various parts North Side and northwest suburbs around settlers, their descendants and, possibly, of the FAA (flight standards, airport certifi- O’Hare. I simply note that Elk Grove Village Potawatomi. cation etc.) eventually. These groups should already has three jobs for every one person. It seems unlikely federal law, specifically have been involved with the planning portion By contrast, some communities in the 2nd the Native American Grave Protection and from day one. Air traffic controllers at the Congressional District have 60 people for Repatriation Act, would lend much muscle tower are well versed on what works well every one job. Thus, I’m intelligently for the to those opposed to Daley’s plan, which calls with the current airport and what does not. 236,000 new jobs and billions of dollars of eco- for knocking out three runways, building We can provide the best advice on what nomic activity; that Peotone will bring in four new ones and adding a western entrance needs to be accomplished to increase capac- and around my district, where the need is and terminal. ity while maintaining safety. It is truly greatest. The Southland needs economically ‘‘Primarily, the legislation applies to fed- amazing that these groups were not con- stable communities, and families who have a eral lands and tribal lands,’’ said Claricy

VerDate 11-MAY-2000 06:50 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00094 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.098 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5185 Smith, deputy regional director for the Bu- was closed in the early 1950s to make room charge anti-competitive fares. In addition, reau of Indian Affairs. for O’Hare access roads. some of the lucrative gambling revenues, Even if someone made the argument that She said the Chicago region, which used to now going to enrich political insiders, would O’Hare is effectively federal land because it be home to Potawatomi, Chippewa and other be used for a competitive makeover of uses federal money, the most Resthaven pro- Indians, doesn’t have enough cemetery O’Hare. ponents could probably hope for is a short space, and the dead should be treated with SOC’s plan also would provide better safety delay, a say in how any disinterment takes more respect. and environmental protections. Every home place and, If they are Indian, the oppor- ‘‘We don’t have much of a positive attitude impacted by noise at O’Hare and Midway tunity to claim the bodies of Native Ameri- toward cemeteries in Chicago,’’ Sclair said. would be soundproofed, instead of a select cans. ‘‘Do you know why? Because the dead don’t few as provided under the current, flawed ‘‘They’ve got a hard road,’’ Smith said of pay taxes or vote.... Well, technically they standards adopted by Chicago. O’Hare neigh- those who might try to halt a Resthaven clo- don’t vote.’’ bors would be spared the concentration of air sure on the basis of Indian remains. pollution brought by a doubling of flights at When O’Hare was being built five decades SUBURBAN O’HARE COMMISSION, what is already the state’s largest single air back, an old Indian burial ground that had Bensenville, IL, February 13, 2002. polluter. Under the Daley-Ryan plan, O’Hare neighbors would find themselves in federally become a cemetery for the area’s white set- A BETTER PLAN FOR CURING THE O’HARE required crash zones at the end of runways, tlers was bulldozed. Some bodies were moved AIRPORT BOTTLENECK to a west suburban cemetery and some, in- forcing them to either give up their homes or CHICAGO.—A plan for relieving the Chicago cluding an unknown number of Indians, were live in devalued property in great risk. Be- aviation bottleneck was unveiled today that believed to be transferred to Resthaven, ac- cause most of the region’s air traffic growth costs less, is more efficient, less destructive cording to published accounts and those fam- would use the South Suburban airport where and can be realized quicker than a ‘‘com- ilies with local history. pollution and safety buffers are required ‘‘Ma used to talk about Indians being bur- promise’’ plan that Chicago Mayor Richard under current federal standards, fewer total ied at Resthaven,’’ said the 44-year-old M. Daley and Illinois Gov. George Ryan are people in the region would be subjected to Placek, who believes the Indians share a trying to rush through Congress. health and safety risks. mass grave. His mother, who died in 1996, The plan was crafted by the Suburban Key to the SOC Solution is the construc- also is buried at Resthaven. ‘‘I used to hear O’Hare Commission, a council of govern- tion of a truly regional hub airport in the as a little kid Potawatomi’’ were there. ments representing a million residents living South Suburbs, rather than an inadequate Regardless of the tribe to which the dead around O’Hare Airport. ‘‘reliever’’ airport as envisioned under the belonged, the Forest County Potawatomi The plan includes runway, terminal and Daley-Ryan plan. Just as New York City and Community of Wisconsin, one of several Pot- other improvements at O’Hare International Washington D.C. have more than one hub awatomi bands relatively close to Chicago, Airport, to make it more efficient, competi- airport, a true regional airport in the South plans to get involved. tive and convenient. The plan also includes Suburbs would give Chicago the kind of po- ‘‘It’s concerning,’’ said Clarice Ritchie, a alternatives to the costly and destructive tential it needs with three hub airports researcher for the community of about 1,000 ‘‘western access’’ proposed in the Daley- (O’Hare, Midway and Peotone) to maintain who hadn’t heard about the issue until con- Ryan plan. The centerpiece of the plan re- its aviation dominance for decades. Despite tacted by a reporter. mains, as it has for well over a decade, a the long-made assertions by entrenched in- ‘‘At this stage of the game, who can deter- major hub airport in the south suburbs that terests, such as United and American air- mine who they were specifically? But we run had been urged by experts and government lines, that the Chicago area didn’t need a into this sort of circumstance In many in- officials from three states, and would be second hub airport, Midway already is devel- stances throughout the state of Wisconsin, operational now if not for obstruction from oping into a hub simply because of market and some in Illinois, and we take care of Chicago Mayor Richard M. Daley. The plan forces. With Midway reaching capacity in them as if they were relatives,’’ she said. provides for many more flights to the region, just a few years, and O’Hare already at ca- ‘‘We’re all related, we’re all created from and, consequently, many more jobs. pacity, the sounds of ‘‘no one will come to God, so we do the right thing, we take care ‘‘We always have been in favor of a strong Peotone’’ no longer are heard. Finally, the SOC Solution will protect tax- of anybody and try to see that they’re either O’Hare Airport because of its importance to payers by creating an oversight board of im- not disturbed or properly taken care of’’ our communities and to the regional econ- provements at all airports, including the ‘‘I guess we’d have to keep our mind broad omy,’’ said John Geils, SOC Chairman and south suburban airport and Midway. as to what would be done,’’ Ritchie said. president of the Village of Bensenville. ‘‘This will come as a surprise only to those who ‘‘The SOC Solution is not a fragmented ‘‘Naturally we don’t like to see graves dis- plan that simply focuses on O’Hare, which turbed, but somebody has already disturbed have been taken in by the rhetoric of our op- ponents, who maliciously tried to portray us under the Daley-Ryan proposal is merely an them once. . . . I guess what I’d probably do instrument for extending the political and is talk to the tribal elders and spiritual peo- as anti-O’Hare zealots, willing to damage or even destroy O’Hare. Our plan will expand economic might of a select few,’’ said Geils. ple and other tribes who could be in the area ‘‘Ours is a plan for a regional airport sys- and come to a conclusion of what should be the region’s aviation and economic growth; the Daley-Ryan plan will stifle that growth. tem—one that is based on common sense and done.’’ what is fair and good for the entire public.’’ Bill Daniels, one of the Potawatomi band’s ‘‘The claimed benefits—including delay re- ductions, job increases, improved safety, spiritual leaders, said spirits may not look SUBURBAN O’HARE COMMISSION, greater competition and less noise—of the kindly on those who move remains. Bensenville, IL, February 26, 2002. Daley-Ryan O’Hare expansion plan are un- ‘‘It’s not good to do that—move a cemetery Hon. DANIEL K. AKAKA, true. We have a plan that is better for the or just plow over it,’’ he said. U.S. Senate, entire region, and not just for Chicago City Daley’s plan, which still must be approved Washington, DC. Hall and its big business friends,’’ Geils said. by state and federal officials, also may dis- DEAR SENATOR AKAKA: The Suburban Among the improvements are a realisti- place nearby St. Johannes Cemetery, which O’Hare Commission (SOC) urges you to op- is not believed to have any Native American cally modernized O’Hare, instead of the im- pose H.R. 3479 and S. 1786, which have been bodies. possible attempt by Daley and Ryan to stuff erroneously titled the National Aviation Ca- John Harris, the deputy Chicago aviation ten pounds of potatoes into a five-pound pacity Expansion Act. If enacted, this legis- commissioner overseeing the mayor’s $6 bil- sack. Terminals would be updated, with an lation would have unprecedented and delete- lion project, said this is the first he’s heard eye to matching them with capacity and rious consequences for the national air that there might be Indian remains at making them more user friendly. Selected transportation system as well as for the Chi- Resthaven, and city officials are trying to runways would be widened to accommodate cago-area aviation system. verify it. the large new jets, such as the A380X, thus SOC is a strong advocate of expanding air- ‘‘I have no reason to doubt them at this increasing the number of passengers the air- port capacity for the Chicago area and has time, but I have no independent knowledge,’’ port can serve, without increasing air traffic. presented a plan that will meet the area’s he said. But ‘‘whether they’re Indians or not, Western access and a bypass route would be aviation needs for the 21st century through we would exercise in extreme level of sensi- built on airport property, skirting O’Hare to the development of a needed third airport in tivity In the interest of their survivors.’’ the south—as originally planned, thus avoid- the South Suburban area, as well as mod- Resthaven, which is loosely affiliated with ing the destruction of uncounted homes and ernization of O’Hare International Airport. the United Methodist Church, has about 200 businesses, as under the Daley-Ryan plan. SOC’s plan supports and would accomplish graves, some of which date to the 19th cen- The SOC Solution also would increase com- O’Hare modernization, because we recognize tury. It’s located on about 2 acres on the petition at O’Hare, through terminal and that it is a very important aviation facility West side of O’Hare, in Addison Township other facilities improvements so that air for the country and our region. just south of the larger St. Johannes. travelers using the competition are not If enacted, the proposed legislation would Self-described ‘‘advocate for the dead’’ treated as second-class customers. Funding accord unique and special status to O’Hare Helen Sclair has heard there might be Indi- of O’Hare improvements would be discon- Airport, unlike any other airport in the na- ans buried at Resthaven, but she suspects nected from a complicated bonding scheme tion, by legislatively mandating a multi-bil- not all Native American remains were re- that allows United and American airlines to lion dollar airport development project, call- trieved when Wilmer’s Old Settlers Cemetery become more entrenched and to continue to ing for the total reconstruction of O’Hare to

VerDate 11-MAY-2000 06:50 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00095 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.100 pfrm09 PsN: H23PT1 H5186 CONGRESSIONAL RECORD — HOUSE July 23, 2002 create six new parallel runways and new ter- waukee or other airports in the Great Lakes TESTIMONY OF THE SUBURBAN O’HARE minal facilities. Its promoters hope to region? COMMISSION BEFORE THE HOUSE achieve nothing less than the circumvention What impact would the expenditure of bil- AVIATION SUBCOMMITTEE OF THE of the existing legal framework for review of lions of dollars for, and according special HOUSE COMMITTEE ON TRANSPOR- airport development by the FAA and the congressional priority to, the O’Hare project TATION AND INFRASTRUCTURE—HEAR- elimination of the environmental review have on critically needed airport develop- ING ON H.R. 3479 MARCH 6, 2002 process for one of the largest airport expan- ment and aviation security projects for other TESTIMONY OF THE SUBURBAN O’HARE sions in aviation history, the size, scope and airports throughout the nation. COMMISSION cost of which has not yet been publicly dis- It appears that one of the unstated goals of Mr. Chairman, and members of the House closed. Aviation Subcommittee, the Suburban The legislation: the legislation is to curtail the normal O’Hare Commission (SOC), a consortium of Makes it ‘‘federal policy’’ to construct the NEPA process and, to avoid the NEPA-man- 14 local governments adjacent to O’Hare O’Hare portion of the plan (projected to cost dated right of all interested persons to have International Airport, representing the in- as much as 16 billion dollars) and, if con- an opportunity to review and comment on terests of over 1.5 million citizens, is grateful struction has not commenced by 2004, re- the environmental impacts of the proposal. for the opportunity to present its views con- quires the federal government to complete the The legislation seeks to have Congress make cerning the important national aviation pol- project ‘‘as a federal project’’; the decisions now vested by law with the icy and legal issues raised by H.R. 3479. Preempts the State of Illinois from exercising FAA, even though details of the project has This legislation is intended to fast-track a its lawful rights under its own laws; yet to be fully disclosed, the purpose and massive new runway redevelopment plan for Mandates changes to the Clean Air Act imple- need has yet to be documented, the environ- the Chicago O’Hare International Airport. mentation plan for the Chicago region should mental impacts have yet to be evaluated, the Its principal purpose and effect would be to it interfere with the O’Hare expansion plans; alternatives and cost-benefits have yet to be circumvent established requirements for re- and studied. Short-circuits the environmental review proc- view of airport development projects by the This is not streamlining; it is redlining for Federal Aviation Administration (FAA) and ess under NEPA, a requirement applicable to a single airport! It is unprecedented in the all airport construction projects. environmental agencies. The effect of the history of civil aviation. A legislative man- bill would be to silence, though an act of Each of these issues is particularly trou- date giving O’Hare special priority for ap- bling from a national aviation and environ- Congress, further public debate concerning provals and funding for billions of taxpayers the future and direction of Chicago’s airport mental perspective. For example, the cur- dollars will adversely impact the availability tailing of the NEPA process calls into ques- needs. It would effectively curtail the role of of grants-in-aid dollars for other major air- the FAA in evaluating and approving airport tion the need for other airport projects to port development projects around the coun- undergo the same rigorous screening process development projects; it would also have the try. If the legislation is enacted, proposed effect of substantially reducing the protec- to determine their public benefit and envi- enhancements at airports such as San Fran- ronmental compliance. Further, the legisla- tions of NEPA that safeguard the environ- cisco, Washington Dulles, Los Angeles, Den- ment and the public health and welfare. H.R. tion would in effect commit the Federal Gov- ver, Seattle, Atlanta, and Dallas-Ft. Worth ernment to spend billions of dollars for a 3479 represents an unprecedented abandon- may experience delays in order to accommo- ment of the federal laws established by Con- flawed airport development project, and di- date the preference granted to Chicago. verts needed financial and federal govern- gress to provide for the reasoned and orderly ment resources from other critically needed The proponents of HR 3479/S 1786 unsuc- construction of airports in a manner con- airport projects throughout the nation. cessfully attempted to enact this legislation sistent with the public interest. The legislation is unnecessary. If the without a hearing late last year but that At the outset, it is important for you to project is compelling, it should be able to plan of action was soundly rejected by mem- understand what SOC stands for, and what it meet the usual and regular evaluative proc- bers of the U.S. Senate, who objected to it does not. SOC is not opposed to airport de- ess that is applicable to every other airport being added to an appropriations bill without velopment, nor the need to improve the ca- in the country. The FAA possesses the spe- the benefit of a hearing. The speed with pacity and efficiency of Chicago’s airport cial competence and expertise to evaluate which its supporters want this bill to move system. To the contrary, there is broad re- airport development projects. It is the agen- suggests that they really do not want full gional consensus—including SOC—that the cy entrusted by Congress to determine and open consideration by Congress regard- Chicago metropolitan area needs significant whether this or any other project makes ing the substantial questions that surround new airport capacity. What SOC does oppose, sense for the national air transportation sys- this bill. Recent history with aviation legis- however, is the single-minded focus on ex- tem. The legislation would substantially lation should suggest that the industry’s pansion at O’Hare—when there is a better, erode the FAA’s independent and delibera- complex economic, policy, financial and en- faster, safer, less expensive, and more envi- tive role in reviewing the O’Hare project. vironment issues require thoughtful review, ronmentally-sound alternative: the construc- Moreover, the bill short-circuits the required not superficial treatment. tion of a South Suburban Airport at review under the National Environmental The bill is also unprecedented because it Peotone. Policy Act (NEPA), a 30 year old statute curtails the ability of a state to enforce its SOC believes that these regional airport with a well defined process to review major own laws and is thereby inconsistent with development issues are matters to be deter- federal action of this type. the Tenth Amendment. Every State should mined by the Federal Aviation Administra- The O’Hare project raises many public be very concerned about this proposed prece- tion, exercising authority charged to it by questions, which requires full debate and dent, which may adversely affect its ability law. We do not think that the Congress public disclosure through the FAA’s review to make similar decisions in the future. should decide, through political fiat, what procedures. These questions include: Moreover, the attempt to foreclose the next does, or does not make sense for the citizens Will the air traffic control airspace re- Governor’s ability to review this project most directly affected by the Chicago re- sources around O’Hare allow the substantial makes bad public policy. The Chief Execu- gion’s airport development needs. Congress increase in operations (project to increase tive of a state should evidence the broader has neither the specialized aviation and air- from 900,000 per year to 1.4 million per year)? support of his or her government before such port environmental expertise of the FAA, Is the O’Hare expansion plan the best projects are adopted by the federal govern- nor the local knowledge necessary to make choice to meet the future needs of the Chi- ment. HR 3479/S 1786 seek to abrogate that these judgments. Indeed, for Congress to im- cago region? historical protection. pose its will in the manner proposed by H.R. How much will the O’Hare expansion 3479, would strip away the vested oversight The Senate Commerce, Science and Trans- project cost? authority of the State of Illinois with re- portation Committee is likely to hold a Will six, closely aligned parallel runways spect to airport construction within its bor- hearing on S 1786 in the near future. We en- (only 1400 feet apart) be cost effective to ders, and directly violate the 10th amend- courage you to urge Chairman Hollings and maximize the region’s capacity? ment. What will be the impact on surrounding Ranking Member McCain to conduct a care- SOC opposes this bill because it seeks to neighborhoods of the proposed project? ful and thorough investigation of the legisla- avoid the careful framework established for Is it possible to tear up two major runways tion. review of airport development by the FAA in and build four additional runways at the SOC is an advocate for the expansion of cooperation with state airport sponsors. same time O’Hare is attempting to operate Chicago’s aviation capacity. SOC has issued And, the bill would result in a major curtail- at full capacity? What specific, detailed its own fully documented report which sets ment of the critical environmental review operational plan has been prepared and how forth a Plan to increase capacity in the Chi- process. The O’Hare redevelopment plan is does it propose to make these massive alter- cago region. See enclosures. We urge you to one of the largest airport expansions in avia- ations while O’Hare continues to function as oppose this legislation which would reverse tion history. A project of this size, scope, a key US hub? 30 years of precedent and policy under NEPA and cost certainly deserves more than a per- Will the funds that must be expended at and aviation law. functory review, which is all the bill would O’Hare preclude the development of Sincerely, allow. Before turning to a more thorough Peotone? Will such mandated funding impact JOHN C. GEILS, evaluation of the legislation, I would like to future developments at Midway or Mil- Chairman. highlight a few of our key concerns.

VerDate 11-MAY-2000 06:50 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00096 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.103 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5187 H.R. 3479 is unprecedented in the history of ture of Federal government resources, other Thus, under the legislation, Congress civil aviation. It would: vitally important airport development would nullify the FAA’s role in determining Declare it to be ‘‘federal policy’’ to con- projects around the country would be ad- whether this airport development project is struct the O’Hare expansion project (ex- versely impacted. If this legislation is en- consistent with applicable requirements and pected to cost 15 billion dollars or more). If acted, airport projects at airports such as reflects the sound expenditure of limited re- the City has not commenced construction by San Francisco, Dallas/Ft. Worth, Los Ange- sources and airport development funds. En- 2004, the FAA is required to ‘‘construct the les, Atlanta, San Jose and Seattle may expe- actment of this legislation will dictate the [six] runway design plan as a federal rience FAA review delays or reduced funding construction of additional runways at project’’; in order to accommodate the preference ac- O’Hare without regard to whether they will Accord the O’Hare runway project special corded to O’Hare by Congress. actually add capacity to the Chicago region statutory priority over every other airport DOT and FAA currently have discretion to or the national air transportation system. project in the nation; approve airport development funding for THE O’HARE REDEVELOPMENT PLAN WOULD BE A Violate the 10th amendment by preempting those projects that will ‘‘preserve and en- NATIONAL AIR TRANSPORTATION MISTAKE OF the State of Illinois from exercising its law- hance capacity, safety and security’’ at air- EPIC PROPORTIONS ful oversight authority under its own law; ports throughout the country. 49 U.S.C. The O’Hare ‘‘runway design plan’’, which Interfere with FAA’s statutory responsi- § 47115(c)(1). The Secretary is required to the legislation will mandate, calls for a mas- bility to evaluate the air safety, efficiency take into account ‘‘the effect the proposed sive expansion of O’Hare by creating a total and public benefits/costs of airport develop- project will have on the overall national air of six parallel runways. However, in terms of ment projects. transportation system and capacity.’’ 49 Short-circuit the environmental review well-established FAA safety and efficiency U.S.C. 47115(d)(1). In addition, the DOT and process under NEPA, which is applicable to standards, several of the runways are too the FAA now have the authority to approve all other airport construction projects; closely spaced (separated by only 1,400 feet) changes in an airport’s configuration (the Mandate changes to the Clean Air Act to allow for simultaneous arrivals or depar- airport layout plan) and to review the im- State Implementation Plan (SIP) for the tures. The runways can only be used simul- pacts of such changes. Chicago area by giving O’Hare a blank check taneously if one runway is used for arrivals The important issues the FAA is required to define its own pollution emissions at the and the other is used for departures—and to consider, but which the legislation short- expense of other industries. even then only if the weather is good. When- For these reasons, SOC strongly urges the circuits include the following: Will the air traffic control airspace re- ever cloud cover and visibility conditions re- Aviation Subcommittee to reject H.R. 3479, sources around O’Hare allow the substantial quire the use of instrument landing proce- and its goal of establishing a unique set of increase in operations (projected to increase dures (a chronic situation at O’Hare), these rules, applicable to no other airport in the from 900,000 per year to 1.6 million per year)? closely spaced parallel runways could not be nation, to ensure construction at O’Hare. Is the O’Hare expansion plan the best used simultaneously at all. By mandating 1. H.R. 3479 CONSTITUTES UNPRECEDENTED IN- choice to meet the future needs of Chicago the construction of the proposed configura- TERFERENCE WITH FAA’S STATUTORY RESPON- region? tion, Congress would abrogate the FAA’s ex- SIBILITY TO EVALUATE THE AIR SAFETY, EFFI- How much will the O’Hare expansion isting statutory power to determine whether CIENCY AND COST/BENEFITS OF AIRPORT DE- project cost? the proposed runway system is safe and VELOPMENT PROJECTS. Will six, closely-aligned parallel runways whether it would in fact add capacity to the SOC is extremely concerned about the shift (several of which are only 1400 feet apart) be region. in decision-making responsibilities over air- cost effective to maximize the region’s ca- The proposed legislation would have Con- port development that would be brought pacity? gress make findings that the national air about by H.R. 3479. The bill would drastically What will be the impact on surrounding transportation is ‘‘dependent’’ on O’Hare and impinge—indeed, nullify—the FAA Adminis- neighborhoods of the proposed project? that ‘‘the reliability and efficiency of inter- trator’s and the Secretary of Transpor- Is it possible to tear up two major runways state air transportation for the residents and tation’s authority to review and approve air- and build four additional runways at the businesses in many States depend on the effi- port development projects. The exercise by same time O’Hare is attempting to operate cient processing of air traffic operations at the FAA of independent, objective and expert at full capacity? What specific, detailed O’Hare.’’ (Sec. 2). While the bill’s promoters, judgment with respect to airport projects is operational plan has been prepared and how most notably the City of Chicago, would no essential to ensuring that public resources does it propose to make these massive alter- doubt prefer that interstate air traffic have are well-spent to optimize the safety and ef- ations while O’Hare continues to function as no alternative but to flow through O’Hare, in ficiency of the air transportation system and a key U.S. hub? reality, this is far from the truth and there to protect against harmful environmental Will the preferences accorded to O’Hare in is a better, more efficient alternative. consequences—particularly on a highly con- the legislation effectively preclude the devel- Passengers traveling via O’Hare have their troverted and extremely costly project such opment of Peotone? Will such preference im- option of any number of viable connecting as this. SOC believes that the critical future pact future developments at Midway or Mil- hubs. Rather than trying to cram more planning decisions about what Chicago-area waukee or other airports in the Great Lakes flights through O’Hare, SOC believes that airports and which particular runways region? the best way to enhance Chicago’s role as a should be built are best made on the tech- What impact would the expenditure of bil- pivotal hub in the national air transpor- nical merits, rather than through the federal lions of dollars for, and according special tation system is through the development of political process. Congressional preference to the O’Hare a modern alternate third airport at Peotone. Under current law, the FAA and DOT have project have on critically needed airport de- Chicago’s large population and economic the responsibility to determine whether any velopment and aviation security projects for base makes it an attractive hub, and a new proposed airport development project is con- other major airports throughout the nation? South Suburban airport will attract more air sistent with promoting the public interest The legislation would rob the Secretary carrier service and more connecting pas- and the safe and efficient management of the and the FAA Administrator of their impor- sengers. national air transportation system. The pro- tant statutory obligations. It is critical for The legislation accords significant pref- posed legislation would substitute a political the expert federal agencies entrusted with erence to O’Hare over the Peotone airport. judgment by Congress for the expert judg- responsibility in this area to evaluate and If, despite the efficiency and safety concerns ment of the agencies that are charged with make a determination on whether the crowd- of the O’Hare project and the superiority of that responsibility under the Transportation ed skies over O’Hare—with the closely abut- the proposed airport at Peotone, O’Hare is Code (Title 49 U.S.C. Subtitle VII). ting busy airspace used by Midway, Meigs massively expanded, the economic viability The legislation would erode the FAA’s and other very active general aviation air- of a new airport would be undermined. An independent and deliberative role in review- ports in the area—are the safest, and most expanded O’Hare could make it more dif- ing the O’Hare project. It would have Con- efficient conduit for additional air traffic ficult to justify a new South Suburban Air- gress make the decisions now vested in the moving to and from Chicago and through the port at Peotone, as contemplated in the leg- FAA, even though details of the development national air transportation system, as op- islation. plan have yet to be disclosed, the need for posed to the development of a new airport in Thus, the proposed legislation pays lip the plan has yet to be documented, the envi- the South Suburban area. service to the development of a new airport ronmental impacts have yet to be deter- The legislation would substantially erode at Peotone, but in practical effect would mined, and the alternatives and cost-benefits the FAA’s independent and objective role in thwart the development of a South Suburban have yet to be evaluated. reviewing major airport expansion projects. Airport. The legislation requires that the The legislation is unprecedented in the his- Under the legislation, Congress will make FAA ‘‘shall construct the [six] runway de- tory of aviation. It accords unique and spe- that determination, not the FAA, since Con- sign plan a federal project’’ if it is not begun cial priority for O’Hare not applicable to any gress would declare that: ‘‘it is critical the by July 1, 2004. No such directive is applica- other airport in the country. This is not Federal Government does all it can to facili- ble to Peotone. As a result, the legislation streamlining; it is redlining for the benefit tate the redesign of O’Hare’’ (Sec. 2(3)), and guarantees the expansion of O’Hare but of a single airport! directs that the FAA ‘‘shall . . . construct leaves Peotone to whither as an unfunded ap- By directing the FAA to give the O’Hare the [six] runway design plan as a Federal pendage. Such determinations should be project priority for approvals and expendi- project’’ (Sec. 3(f)). made by the FAA through the exercise of its

VerDate 11-MAY-2000 05:21 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00097 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.117 pfrm09 PsN: H23PT1 H5188 CONGRESSIONAL RECORD — HOUSE July 23, 2002 expertise, not by Congress. Absent the legis- O’Hare, by eliminating the FAA’s essential The FAA is the lead agency responsible for lative directive, the FAA might well deter- ‘‘purpose and need’’ evaluation. The FAA is coordinating NEPA review of airport con- mine to give Peotone a higher priority than otherwise required to investigate cost-ben- struction projects, along with the involve- O’Hare, based on very real safety, efficiency, efit of airport funding projects, and SOC be- ment of other Federal Agencies and the pub- public interest and environmental consider- lieves that under any such analysis it should lic. In discharging these obligations, the ations. Under the legislation that would not find this one unsatisfactory. Transportation Code and NEPA charge the be possible. The legislation also contravenes the estab- FAA with the duty to objectively and inde- Worse yet, by prejudging the issue and re- lished federal policy to ‘‘give special empha- pendently analyze the proposed airport ex- quiring the mandatory federal construction sis to developing reliever airports.’’ 49 U.S.C. pansion, and its impact on the environment, of the ill-conceived O’Hare six-runway design § 47101(a)(3). By concentrating an ever-in- without prejudging the outcome. plan, Congress would be condemning the Chi- creasing number of airplanes in the finite Section 3(f) of the bill—which compels the cago region and the national air transpor- volume of airspace over O’Hare, Congress Administrator to begin building the runway tation system to a future of interminable would be frustrating the very reliever pro- development plan at O’Hare by 2004 if the delays. Because of air traffic constraints gram it mandated the FAA to promote. City has not begun construction—effectively that will be exacerbated by the O’Hare Another important consideration for air- eliminates that independence. FAA would do project, a six-runway O’Hare super-hub port development funding requires the Sec- all it could to avoid having to assume con- would produce the biggest and most delay- retary to be satisfied that ‘‘the project will struction of O’Hare as a federal project. A prone airport in the country. be completed without unreasonable delay’’. statutorily-imposed construction ultimatum The Achilles heel of the O’Hare redevelop- 49 U.S.C. § 47106(a)(4). Attempting a massive by Congress would have the effect of forcing ment plan is that the system is guaranteed redevelopment project at one of the busiest the environmental review process to be so to collapse in bad weather. Safety standards airports in the country is a recipe for project truncated as to effectively preclude mean- mandate that the closely-spaced parallel delays and massive disruption to the existing ingful evaluation by the FAA of the environ- runways could not be used for simultaneous air carrier activities at O’Hare. mental consequences. The massive six-runway redevelopment operations when the weather requires pilots II. H.R. 3479 SHORTCUTS NEPA AND A HOST OF to use instrument procedures. This means and expansion plan at O’Hare raises serious OTHER STATUTES THAT ARE ESSENTIAL TO and significant adverse environmental ques- that half the expensive new concrete poured THE PROTECTION OF THE ENVIRONMENT AND tions bearing on air quality, other pollut- at O’Hare would effectively be taken out of THE PUBLIC HEALTH AND WELFARE ants, and noise. If an application has signifi- service exactly when they need it most—to This is result-driven legislation which has cant adverse environmental effects, under alleviate bad weather backups, which are a the singular purpose and effect of curtailing the Transportation Code, the FAA Adminis- leading cause of delays. meaningful evaluation of the environmental trator may grant approval ‘‘only after a find- Far from enhancing capacity and effi- consequences in order to lay runways and ing that no possible prudent alternative to ciency, if Congress were to adopt this legisla- pavement at O’Hare. The legislation would the project exists and that every reasonable tion it would saddle the national air trans- shunt aside vital considerations that under step has been taken to minimize the adverse portation system with an enormously expen- current law would otherwise require careful effect.’’ 49 U.S.C. § 47106(c). The proposed leg- sive and delay-prone hub that is, in reality, scrutiny by the FAA and other agencies, in- islation would foreclose consideration of the the worst tool for the job. That is why SOC cluding such issues as: the tremendous noise otherwise legally-required alternatives. believes this is a matter best left to the impacts over surrounding communities, the Indeed, the alternative endorsed by SOC— FAA’s expert judgment, instead of the legis- massive amounts of ozone and other airborne that of a new South Suburban Airport—can lative process. pollutants that would be emitted into the readily be shown to produce far fewer nega- LAYING NEW CONCRETE ON TOP OF FUNCTIONAL Chicago-area airmass, the millions of addi- tive environmental impacts. A new airport EXISTING RUNWAYS FLUNKS THE COST-BEN- tional gallons in toxic deicing fluid and at Peotone would have an extensive non-resi- EFIT TEST, AND DEFEATS THE FEDERAL POL- other chemical runoff that will flow into dential environmental land buffer to miti- ICY TO DEVELOP RELIEVER AIRPORTS water-ways, and the impact of the project on gate the noise and air pollution created by There is compelling evidence dem- wetlands, endangered species and other nat- the facility. In contrast, the environmental onstrating that the development of a third ural resources. ‘‘buffer’’ for O’Hare currently consists of Chicago airport at Peotone would provide Even in its current pre-expansion condi- Bensenville, Wood Dale, Elk Grove and a more effective capacity expansion for the re- tion, O’Hare is the largest source of toxic host of other DuPage County communities— gion, and could be brought on line more emissions and hazardous air pollutants in a residential ‘‘buffer’’ that would be severely quickly, at less cost, with less disruption to the State of Illinois. Moreover, monitoring negatively impacted if hundreds of thou- existing operations, and with less environ- data shows that O’Hare impacts large num- sands of more flights are added at O’Hare. mental impacts, than the proposed manda- bers of Chicago area residents with signifi- It is highly significant that two Chicago tory development project at O’Hare. Cost es- cant and undesirable noise exposure. Adding area Congressmen from different districts, timates released by the State of Illinois indi- hundreds of thousands of new flights will different political parties, and with different cate that a new six runway airport at make matters much worse. SOC is extremely political philosophies—Congressmen Hyde Peotone would cost in the vicinity of 5 bil- concerned that the proposed legislation will and Congressman Jackson—have come out lion dollars. Cost estimates for new runways effectively preclude further consideration of united against further O’Hare expansion, at O’Hare are between 1 to 2 billion dollars these important issues, cut off public com- based, in large part, on the disastrous envi- per runway. Chicago itself estimates that ment, and curtail thorough evaluation of the ronmental impacts to the region. Allow me terminal expansion at O’Hare would cost an- public health and environmental consider- to quote here from their open letter to State and Regional Leaders—— other 6 billion dollars, bringing the total tab ations NEPA was enacted to protect. ‘‘Rather than build an environmentally for the O’Hare expansion extravaganza to a While the legislation pays lip service to sound new airport, Chicago wants to add new compliance with NEPA, there is simply no whopping 15 billion dollars. Even this mas- runways at O’Hare. sive figure does not include the additional way that a project of this scope and scale Adding runways at O’Hare would com- cost of access roads, parking facilities, and could be subject to meaningful NEPA review pound what is already an environmental dis- mitigation measures for the immediately in the scant period of time the legislation al- aster. Even Chicago in its Master Plan ac- impacted communities. lows before the FAA is compelled to begin knowledged that adding runways would Given that Peotone would provide substan- runway construction ‘‘as a federal project.’’ allow a level of air traffic that would be en- tially more new incremental capacity at sub- Airport development projects of this mag- vironmentally unacceptable. Despite this en- stantially less cost, the O’Hare construction nitude ordinarily take several years to com- vironmental unacceptability, Chicago is ag- plan is a spendthrift nightmare. Under exist- plete the NEPA process, under current law gressively fighting a new airport and is ac- ing law, the FAA is responsible for weighing and procedures. tively pushing the option of new runways at the ‘‘project benefit and cost’’. 49 U.S.C. Thus, while the bill states that implemen- O’Hare. (Hyde/Jackson Open Letter, October, § 47115(d)(2). Congress added that responsi- tation of the O’Hare construction plan ‘‘shall 1997 at 9.) bility to avoid situations in which taxpayer be subject to application of Federal laws These are precisely the type of critical en- dollars are expended on projects that do not with respect to environmental protection vironmental issues that NEPA requires to be represent the best use of limited airport de- and environmental analysis including thoroughly examined prior to a major fed- velopment funds. Under the required cost- [NEPA]’’ (Sec. 3(a)(2)(B)), as a practical mat- eral action like the O’Hare redevelopment benefit analysis, Chicago would be required ter the construction deadline would make it project. However, NEPA and its companion to examine various alternatives and consider impossible for FAA to conduct the necessary environmental statutes would be effectively issues such as whether the addition of new NEPA review. Courts have held that when gutted by the proposed legislation. Viable, runways at an existing airport is a better or Congress imposes a mandatory action under prudent, and indeed more desirable environ- worse investment than building a new air- an impossible deadline, NEPA has, in effect, mental alternatives exist than re-developing port. SOC submits that the O’Hare construc- been legislatively overruled. See, Flint Ridge an inherently delay-prone airport in close tion plan flunks this test. Development Co. v. Scenic Rivers, 426 U.S. proximity to the City. This legislation elimi- The proposed legislation provides a ‘‘quick 776 (1976). That is exactly what Congress nates the FAA’s independence and forces the fix’’ to the otherwise fatal cost-benefit prob- would be doing here, despite token language FAA, as the lead agency on this project, to lems affecting a large scale redevelopment of to the contrary. short-circuit its environmental review.

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A. NATIONAL ENVIRONMENTAL POLICY ACT nities will experience an inevitable and un- consider the impact that their programs and (NEPA) (42 U.S.C. § 4321 ET SEQ.) AND ITS acceptably high concentration of Ozone and some private actions might have on such na- COMPANION ENVIRONMENTAL STATUTES WOULD a host of toxic pollutants hanging in toxic tional resources. This consideration must be BE IGNORED BY THE PROPOSED LEGISLATION cloud over O’Hare. (By contrast, a South documented as part of the agencies’ decision- NEPA would either be eliminated or so Suburban Airport would have a significant making process. Many of these laws require truncated by the legislation as to preclude land buffer to assist in the dispersal of these the lead Federal agencies to consult with meaningful review by the FAA Adminis- toxic pollutants and to keep them away from other federal and state agencies having legal trator, coordinating federal agencies and the residential areas. No such buffer exists at authority over the proposed action or special public. NEPA is the nation’s core environ- O’Hare.) expertise relevant to the proposed action. mental statute that requires Federal agen- As required by Section 176 of the Clean Air Significantly, Congress has determined cies to give careful consideration to the po- Act, the State of Illinois has, after extensive that standards and processes embodied in tential environmental impacts of the public consultation and comment, developed each of these Federal laws should be applied project, to consider practical alternatives to a State Implementation Plan (SIP), which is to every airport expansion. Some of the most obvious environmental criteria that would the project, and to give the public adequate the State’s plan to come into compliance be eviscerated by the proposed O’Hare expan- opportunity to participate in the review with the national air quality standards sion legislation are set forth below. process. under the Clean Air Act. The SIP reflects a The Department of Transportation—in its careful balance between the protection of 1. ENDANGERED SPECIES ACT, 16 U.S.C. 1531 ET May 21, 2001 Report To Congress on Environ- the public health and welfare from air pollu- SEQ. mental Review of Airport Projects—recog- tion, on the one hand, and the need for com- Airport expansion projects frequently raise nizes the important role of NEPA and public merce and other activities, on the other Endangered Species Act concerns because participation as critical to the airport devel- hand. Each Federal agency involved in an airports are favored habitats for certain en- opment process: airport expansion project must make a de- dangered and threatened birds of prey. If re- ‘‘[NEPA] requires federal agencies to pre- termination that the proposed action con- view of the proposed action reveals the po- pare [Environmental Impact Studies] for forms to the SIP. tential for an adverse impact, the FAA must projects significantly affecting the environ- Because of the huge increase in air pollu- obtain an opinion from the Fish and Wildlife ment. Since most new commercial service tion, there is a major inherent conflict be- Service regarding the impact of the project runways and major runway expansions tween the existing SIP and O’Hare expan- on the endangered species or its habitat. The produce significant environmental impacts, sion. Under normal SIP processes, the City Endangered Species Act prohibits the project an EIS is usually required. (Page iii) of Chicago, the airlines, the State of Illinois from proceeding unless the agencies agree on ‘‘Public involvement is an essential part of and its various agencies, the U.S. EPA, the alternatives to the project to eliminate the the environmental review process. . . . There FAA, other Federal agencies, and the public adverse impact. is usually a high degree of public interest in would work together to amend the SIP to ac- It will be difficult or impossible, in the airport projects, including a certain amount commodate O’Hare’s needs while balancing time allowed, for the FAA and the Fish and of public opposition.’’ (Page v). competing interests. H.R. 3479 completely Wildlife Service to perform the analysis of ‘‘[P]ublic opposition to airport projects avoids that consultative and deliberative the potential impacts that O’Hare expansion continues to rise. The NIMBY effect should process. would have on endangered species. not be dismissed as an environmental fringe If this legislation is enacted, the City is 2. CLEAN WATER ACT, 33 U.S.C. 1251 ET SEQ. element. It is based on real environmental empowered to define O’Hare’s SIP allocation, The Clean Water Act prohibits the dis- concerns and has an increasingly broad- without the normal public participation charge of dredged or fill material into wet- based constituency.’’ (Page iii). process and without the participation of the lands except in compliance with a permit H.R. 3479 is diametrically opposed to the State and Federal agencies. Moreover, the issued by the Army Corps of Engineers. Fed- objectives of NEPA and the important public legislation directs the Administrator of the eral agencies are required to identify any policies recognized by the Department of EPA to amend the SIP to accommodate the wetlands or other navigable waters of the Transportation in its Report. For starters, O’Hare’s expansion (Section 3 (a)(5): ‘‘... United States that might be affected by a the airport environmental review process for the Environmental Protection Agency shall project. a runway expansion project of this mag- forthwith use its powers under the Clean Air In the normal course of any other airport nitude requires the preparation of an EIS, as Act respecting approval and promulgation of project, relevant Federal and State agencies well as the opportunity for substantial pub- implementation plans to cause or promul- would contribute their comments and judg- lic involvement. That cannot and will not gate a revision of such implementation plan ment as to whether a proposed project would happen under the timetable contemplated by sufficient for the runway redesign plan to put wet-lands at risk. If enacted, this legisla- the proposed legislation, and the public’s satisfy the requirements of section 176(c) of tion would result in the approval of the right to participate in the NEPA process the Clean Air Act.’’) This is unprecedented O’Hare project without consideration of would be rendered meaningless, legislation. There is no public process, no these potential impacts in accordance with In addition to the FAA’s express NEPA ob- balancing, only O’Hare claiming for itself established statutory standards. ligations, the Clean Air Act further author- whatever level of emissions it wants. 3. FLOODPLAINS (EXECUTIVE ORDER 11988) izes the EPA Administrator to conduct a Under the proposed statute, O’Hare’s needs Executive Order 11988 requires Federal NEPA review on federal projects for con- (as determined by the City) are accepted as agencies to avoid, to the extent possible, the struction and major federal actions that are given, and the EPA would force other insti- adverse impacts associated with the occu- subject to NEPA. If the EPA Administrator tutions to reduce their emissions pursuant pancy and modification of floodplains and to determines that the proposed action is un- to the EPA’s judgment on how to reach SIP avoid direct and indirect support of flood- satisfactory from the standpoint of public goals. This fails to allow other businesses plain development wherever there is a prac- health and welfare, or environmental qual- and the public any opportunity to contribute ticable alternative. ity, she must make public that determina- to or participate in the process. Power com- For all airport development projects, the tion and refer the matter to the Council on panies, railroads, truckers, buses, heavy in- FAA is required to: (1) determine if the pro- Environmental Quality for mediation. The dustry, and the Peotone Airport will, in all posed project is located in a floodplain; (2) mandatory 2004 Federal construction dead- likelihood, have their target emissions cut identify and evaluate practicable alter- line under the legislation for the O’Hare by the EPA to satisfy O’Hare’s runway plan. natives to the proposed project; (3) develop project forecloses meaningful review. And, because this is a legislative mandate, mitigation measures if alternatives are not B. STATE IMPLEMENTATION PLAN (SIP) none of those other vitally interested parties practicable; and (4) encourage public partici- CONFORMITY DETERMINATION (CLEAN AIR ACT) will be allowed to challenge O’Hare’s claims pation in the review process. or the EPA Administrator’s solutions. The Chicago O’Hare area is classified as a If enacted, this legislation would mandate The proposed legislation would radically severe nonattainment area for ozone, and implementation of the six-runway O’Hare alter the SIP and would drastically impact parts of the Chicago region are designated as project without even passing consideration other industries. The statute before Congress moderate nonattainment for particulate of whether floodplains would be affected and would do tremendous damage to the existing matter. Without amendment of the Clean Air measures that could be taken to reduce the processes and the other businesses impacted Act, the O’Hare expansion program would impact of the project. by this unique power granted the City. face difficult or insurmountable burdens III. H.R. 3479 WOULD VIOLATE THE TENTH under that statute. C. OTHER IMPACTED ‘‘CROSS-CUTTING’’ AMENDMENT OF THE U.S. CONSTITUTION O’Hare is a huge polluter, and will be far ENVIRONMENTAL LAWS SOC believes that it is inappropriate and worse if expanded to nearly double the level NEPA is the primary statutory tool for unlawful for the Federal Congress to dictate of flight operations. Air pollution from analyzing the impact of airport expansion on to the State of Illinois which airports and O’Hare consists of burned and unburned jet the environment. In addition, Congress has what runways to construct within its bor- fuel aerosols containing dozens of carcino- passed a number of environmental laws ad- ders. Decisions involving airport and infra- genic organic compounds—including Benzene dressing federal responsibility for recog- structure development have historically and Formaldehyde. If flights are expanded nizing and protecting special national re- been delegated to the states. H.R. 3479 would from 900,000 to 1.6 million annually, O’Hare sources. These laws, referred to as ‘‘cross- strip the State of Illinois of its vested au- and its immediately surrounding commu- cutting’’ laws, require Federal agencies to thority to delegate and authorize the City of

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Chicago to construct airports in the State. State’s delegation, the legislation would LOWER FARES Doing so would be a clear-cut violation of have the effect of undermining the delega- A third airport would reduce fares. Fares the tenth amendment, tion of the authority from the State to the to Chicago today average 34 percent higher Under the framework of federalism estab- City and thereby extinguish that delegation. than most major U.S. cities because of a lack lished by the Constitution, Congress is with- As a result, any effort by the City to build of competition at O’Hare. American and out power to dictate to the States how the new runways would be without the required United Airlines practically monopolize the States delegate power, or to limit the dele- State delegation and ultra vires under State airport, controlling 89 percent of all flights. gation of that power, to their political sub- law. A new airport would increase competition divisions. Unless and until Congress takes The national implications of this legisla- among carriers, which often leads to lower over complete responsibility to build air- tion are profound and go well beyond Illinois fares. ports, airports will continue to be developed and implicate States throughout the nation. NO NEW TAXES by States, or their delegated agents, as an Most States have laws providing for some exercise of State power and law. Compliance level of oversight over airport expansions, Airport construction would be paid by pri- by the political subdivision to which the including State environmental laws and per- vate investors and/or the airlines using the State delegates authority to construct air- mitting requirements. Twenty-six states facility—not by taxpayers. Indeed, airports ports with the oversight conditions imposed have laws requiring local airport authorities are cash cows that generate millions of tax by the State is an essential element of State to submit applications for federal funds dollars, spur investment, stabilize commu- authority and power. through the state, rather than directly to nities, shrink welfare rolls and improve qual- The proposed legislation would strip away the FAA. This legislation would set a dan- ity of life. such oversight authority, fundamentally in- gerous precedent nullifying State oversight WON’T HURT MIDWAY OR O’HARE truding upon the State’s sovereign authority laws. This airport would relieve, not compete to take action under its own laws. The legis- with, existing airports. It would handle ovet- lation would prohibit the State from re- IV. CONCLUSION flow traffic from O’Hare and Midway. The stricting or limiting the delegated exercise In conclusion, SOC strongly urges the Sub- third airport would expand, as needed, to ac- of State power by the State’s political sub- committee to reject H.R. 3479. This legisla- commodate future demands that O’Hare and division. It would nullify the decision of the tion would dismantle the careful federal Midway cannot meet. State of Illinois legislature allocating au- framework established to govern the review thority with respect to construction of air- and approval of airport development WHY YOU SHOULD VOTE ‘NO’ ON H.R. 3479 ports located within the State, particularly projects. The FAA must have the unfettered the limitations and conditions imposed by ability to exercise its expert independent Don’t be fooled into thinking this legisla- the State on the delegation of that power to and objective expert oversight functions over tion will benefit your constituents the City. The law is clear that Congress does airport development projects, and to carry H.R. 3479 never should have been brought not have the power to intrude or interfere out its environmental review responsibilities up under suspension. It is too controversial, with a State’s decision as to how to allocate under NEPA, to make sure that whatever What are proponents trying to hide by lim- State power. airport development is undertaken will be iting debate? Under the U.S. Constitution, the State’s the best possible solution for the Chicago re- 2. H.R. 3479 Violates state’s rights. The authority to create, modify, condition, and gion and the national air transportation sys- governor and mayor never consulted the Illi- impose limitations on the structure and pow- tem. nois General Assembly nor did they even try ers of the State’s political subdivisions is a The proposed legislation ties the FAA’s to obtain a permit from the Illinois Depart- matter left the exclusive control of the hands by removing the agency’s neutrality ment of Transportation to expand O’Hare. States. and discretion by forcing it to rush headlong Why? See #3 and #4. Also, think this legisla- ‘‘Municipal corporations are political sub- toward a mandatory construction of O’Hare tion won’t set a precedent that could rob divisions of the State, and created as conven- by 2004. SOC believes that a rational and rea- your state legislature of its power to decide ient agencies for exercising such of the gov- soned evaluation will establish that the de- local airport matters? Think again. ernmental powers of the State as may be en- velopment of a new South Suburban Airport 3. H.R. 3479 Will Cost $15 to $20 billion, Not trusted to them.... The number, nature is superior to O’Hare in every respect—that the 6.6 billion that the Mayor and governor and duration of the powers conferred upon a new airport at Peotone would offer more are claiming. Do you really think there will these corporations and the territory over capacity, can be built at less cost, more be money left over to expand your local air- which they shall be exercised rests in the ab- quickly, and with fewer adverse environ- port once O’Hare is expanded? Think again. solute discretion of the State.... The mental consequences. These are extremely A third suburban airport can be built State, therefore, at its pleasure may modify important considerations which need to be CHEAPER and FASTER than O’Hare. Let’s or withdraw all such powers, may take with- resolved though the established federal re- think ahead and spend the nation’s money out compensation such property, hold it view process. Congress not attempt to re- wisely. itself, or vest it in other agencies, expand or solve them here by political fiat. 4. H.R. 3479 will destroy up to 1,500 homes contract the territorial area, unite the whole and an untold number of businesses once all or a part of it with another municipality, re- SOUTH SUBURBAN AIRPORT FACT SHEET of the safety buffers, ring roads etc. are in place. Don’t believe the claims that ONLY peal the charter and destroy the corporation. Reasons for building of a regional airport 533 homes will be destroyed. These homes are All this may be done, conditionally or un- in Chicago’s south suburbs: conditionally, with or without the consent of occupied by senior citizens, young families the citizens, or even against their protest. In JOBS and Hispanic families—all of whom won’t be all these respect the State is supreme, and The South Suburban Airport would create able to find quality, affordable housing in its legislative body, conforming its action to an estimated 236,000 permanent jobs in the DuPage County if their homes are bulldozed. the state constitution, may do as it will, un- next 20 years. Most of these would be good- Quality of life for 1 million residents sur- restrained by any provision of the Constitu- paying jobs with family health insurance and rounding O’Hare will also be destroyed. tion of the United States.’’ Commissioners of retirement benefits—jobs that stabilize com- 5. H.R. 3479 IS a public health treat. O’Hare Highways v. United States, 653 F.2d 292, 297 munities and rebuild local economies. expansion = increased air and noise pollu- (7th Cir. 1981) (quoting Hunter v. City of REGIONAL AIR TRAVEL NEEDS tion, increased cancer rates...the list goes on. Pittsburgh, 207 U.S. 161, 178 (1907) (emphasis Air travel is expected to double in the next HENRY HYDE. added). 20 years. Chicago’s existing airports cannot JESSE JACKSON, Jr. The Illinois State law delegating powers to handle that growth. O’Hare has reached construct or alter airports and runways are operational capacity and Midway will reach Mr. Speaker, I yield 2 minutes to the subject to the requirements of the Illinois capacity by 2005. Without additional capac- gentleman from Illinois (Mr. HYDE). Aeronautics Act. This Act requires that the ity, airlines will be forced to move their (Mr. HYDE asked and was given per- State approve any alterations of the airport. hubs—and jobs—elsewhere. mission to revise and extend his re- The proposed legislation is an attempt to re- marks.) move this State oversight in violation of the ECONOMIC EQUITY Tenth Amendment. The law would com- The third airport is an urbanist’s dream— Mr. HYDE. Well, at least we have mandeer the City of Chicago, which is an in- solving multiple problems with one invest- worked it out of my friend the gen- strumentality of the State of Illinois, to do ment. While the 1990s has been good to tleman from Illinois (Mr. LIPINSKI) why what the State has prohibited it from doing: many, Chicago’s old South Side/south subur- this city will not get a certificate of i.e. expanding the airport without receiving ban industrial hub has lost jobs and experi- approval from the State. He said be- a permit from the State. Under State law, enced negative growth—resulting in the cause the governor only has a year left, any airport construction without the re- downward spiral of lost investment, soaring and they just do not know what an- quired State permit is unlawful. property taxes, declining schools and rising Congress does not have the authority to crime. The airport would provide economic other governor might want to do. They interfere with the State of Illinois’s deter- opportunities for hundreds of thousands of want to deprive the succeeding Gov- mination as to how to allocate State power people, mostly minorities, who have been ernor of having any say on this mas- to the City of Chicago. By impairing the left behind. sive expansion.

VerDate 11-MAY-2000 06:50 Jul 24, 2002 Jkt 099060 PO 00000 Frm 00100 Fmt 4634 Sfmt 0634 E:\CR\FM\A23JY7.123 pfrm09 PsN: H23PT1 July 23, 2002 CONGRESSIONAL RECORD — HOUSE H5191 Well, I would like to know who is matically reduces the sound of aircraft ernment or creating a short-cut around envi- going to pay for this. We still did not over Arlington Heights, Palatine and ronmental laws. Again, O’Hare is an excep- get an answer on that. If United and Mt. Prospect. tional situation which requires this limited fed- American are going to buy these bonds The bill also highlights the impor- eral action. Other cities and airport authorities that will be issued, why would they not tance of NASA’s Quiet Aircraft Tech- do not have a governor with veto authority demand their present monopoly, or du- nology Program. Leaders in this House over this issue. The city of Chicago does not opoly? These are questions we do not and NASA helped eliminate the noisy want the federal government to take over the have any answers to. Stage II 727 aircraft from O’Hare. We modernization of O’Hare but the language is The Illinois Municipal Code is what set an aggressive Stage III noise reduc- included in case the State delays the State empowers the city. They have no more tion standard now in the air and will Implementation Plan (SIP) of the Clean Air Act nor any less rights to do anything un- soon require even quieter Stage IV air- to slow down the project. The language grant- less conveyed upon them through the craft. ing priority consideration for a Letter of Intent legislature. This bill seeks to sidestep Mr. Speaker, I want to compliment from the FAA for Peotone is no different than the legislature and have Washington the leaders of the O’Hare Noise Com- language that can be found in any Transpor- decide a local issue. patibility Commission and their lead- tation Appropriations bill. Every Republican I have ever known ers, Mayor Arlene Mulder and Mayor Regarding environmental concerns, the bill campaigns on the theory that we are Rita Mullins, for their ongoing work says that implementation shall be subject to going to cut the Federal Government and commitment to the quality of life federal laws with respect to environmental pro- down to size. Well, I would say to Mem- issues in our communities. tection and analysis, and that the environ- bers, do not ever say that, if you vote Mr. Speaker, this is bipartisan legis- mental reviews will go forward in an expedited for this bill. This is a massive transfer lation, strongly supported by the gen- way. There is no attempt to go around existing of power to Congress and debilitates, tleman from Illinois (Speaker state or federal environmental laws, and this weakens, ignores local government. HASTERT), the minority leader, the legislation has the support of many environ- gentleman from Missouri (Mr. GEP- Mr. JACKSON of Illinois. Mr. Speak- mental groups. er, I yield back the balance of our time. HARDT), the Chamber of Commerce and Mr. Speaker, this legislation will allow the Mr. MICA. Mr. Speaker, I am pleased the AFL–CIO. Even the Sierra Club has much-needed expansion of O’Hare to move to yield 3 minutes to the gentleman no objection to its passage. forward. I urge my colleagues to join me in Given this unique political align- from Illinois (Mr. KIRK), who is one of supporting this bill. ment, it is clear that this plan’s time the prime sponsors of this legislation. Mr. MICA. Mr. Speaker, I yield back Mr. KIRK. Mr. Speaker, I thank my has come. I urge adoption of the legis- the balance of our time. chairman for yielding me time, and I lation. The SPEAKER pro tempore. The Mr. COSTELLO. Mr. Speaker, I rise today in rise in strong support of this legisla- question is on the motion offered by support of H.R. 3479, the National Aviation tion. the gentleman from Florida (Mr. MICA) Capacity Act. This legislation was introduced Mr. Speaker, we have been delayed in that the House suspend the rules and by my good friend, Mr. LIPINSKI, and I would the passage of this very important bill, pass the bill, H.R. 3479, as amended. like to thank him for his hard work. I am largely due to the respect and admira- The question was taken. pleased to join him as a cosponsor of this leg- tion we have for one Member of this The SPEAKER pro tempore. In the islation. opinion of the Chair, two-thirds of House, the gentleman from Illinois O’Hare is a tremendously important airport (Mr. HYDE). He is a hero to me, and our those present have voted in the affirm- in not only to Chicago and the Midwest, but ative. communities and our country owe him also our entire national aviation system. It re- a great deal of gratitude for the service Mr. JACKSON of Illinois. Mr. Speak- cently reclaimed the title of the world’s busiest er, on that I demand the yeas and nays. he has given to the Nation. airport and is the only airport to serve as a The Chicago Tribune called the gen- The yeas and nays were ordered. hub for two major airlines. O’Hare serves The SPEAKER pro tempore. Pursu- tleman from Illinois (Mr. HYDE) a 190,000 travelers and operates 2,700 flights ant to clause 8 of rule XX and the ‘‘Lion in Winter,’’ but the last week daily, employs 50,000 people and generates Chair’s prior announcement, further has proved that he is still a tiger. $37 billion ion annual economic activity. proceedings on this motion will be But this legislation is still required, However, O’Hare needs to be redesigned to postponed. for Chicago and for the Nation. Amer- meet today’s demands. It is laid out with f ica’s busiest airport is broken. Pas- seven runways, six of which interest at least sengers using the airfield have only a one other runway. The modernization plan GENERAL LEAVE 60 percent chance of leaving on time, would add one new runway. The seven exist- Mr. MICA. Mr. Speaker, I ask unani- and experts say that when O’Hare gets ing runways will be reconfigured to include a mous consent that all Members may a cold, most airports get the flu. Tie- southern runway for a total of eight runways, have 5 legislative days within which to ups strand Americans everywhere, of which six would be parallel. These improve- revise and extend their remarks and in- caused by an outdated design set in ments would have a significant impact on re- clude extraneous material on H.R. 3479, place by political gridlock. ducing delays and cancellations: bad weather as amended. That gridlock has been broken. Illi- delays would decrease by 95 percent and The SPEAKER pro tempore. Is there nois is one of two States that requires overall delays would decrease by 79 percent. objection to the request of the gen- a governor’s signature before modern- On December 5, 2001, Mayor Daley and tleman from Florida? izing an airfield. We have that signa- Governor Ryan reached a historic agreement There was no objection. ture. to expand and improve O’Hare airport. The f In an historic agreement, our Repub- agreement would modernize O’Hare, create lican Governor and Chicago’s Demo- western access to the airport, provide addi- COMMENDING THE HONORABLE cratic Mayor agreed to the first mod- tional funds for soundproofing home and HENRY HYDE AND HONORABLE ernization of the airfield since 1972. schools near O’Hare, move forward with the JESSE JACKSON, JR., MEMBERS This bill simply ratifies an agreement construction of a third Chicago airport at the OF CONGRESS made by local leaders who showed lead- Peotone site and keep Meigs Field open until (Mr. LIPINSKI asked and was given ership. at least 2006, and likely until 2026. permission to address the House for 1 In these uncertain times, the mod- H.R. 3479 would simply codify the deal so minute.) ernization of this airfield unlocks over that a future governor does not rescind the Mr. LIPINSKI. Mr. Speaker, I just $6 billion in new work, overwhelmingly agreement. Illinois is in a unique situation be- want to conclude by saying that I com- paid for by private funds. Over 100,000 cause the governor does have veto power. If pliment the gentleman from Illinois new jobs will be created, in an unprece- this legislation is not enacted, it is possible (Mr. JACKSON) and the gentleman from dented shot in the arm for Illinois’ that a future governor could undo all the hard Illinois (Mr. HYDE) on the very spirited, economy. work that the current governor and mayor of articulate presentation of their cause. The new design builds a safer O’Hare, Chicago have done to reach this agreement. They are both my friends. I have the eliminating intersecting runways. The There is some concern that this legislation greatest respect for them. Unfortu- removal of north-south runways dra- sets a precedent by involving the federal gov- nately, we disagree on this.

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