There are at least two resolutions, probably more, that will be presented at the October 28 council meeting. One resolution says the city will prevent F-35 basing at Burlington airport at any time. Another says the city will prevent basing the F-35 at Burlington airport during the first basing sequence (beginning in 2020 at the earliest, according to the Air Force, which once said it might happen as early as 2015). Another resolution might be only a sense-of-the-council statement, without binding force of law (which Mayor Weinberger has said he expects).
Blackwood's legal memo acknowledges quietly that a municipality that owns an airport has the legal authority to adopt health and safety regulations for that airport, including control of noise. But mostly she describes all the ways Burlington might be limited in its exercise of that right. Her political position is clear: that the city has the right to protect health and safety in a way that could bar the F-35 from the airport, but it shouldn't even consider exercising that right because, well, someone might sue or something.
In a brief, preliminary response to Blackwood, attorney James Dumont writes:
"Eileen Blackwood's memo accepts the most basic point we have been making for months -- that unlike South Burlington, Burlington is the proprietor of the airport and therefore it has authority that South Burlington lacks. Federal noise standards preempt South Burlington's authority to regulate through zoning or other regulations. The caselaw we submitted and that Blackwood found all agrees that a city that owns an airport can set noise or other standards as proprietor, not regulator."
Does Vermont still know what it means to be a good neighbor?
Although Dumont leaves it implicit, the fundamental question is whether Burlington, unlikely to feel much negative impact from the F-35, has the integrity, conscience, neighborliness, or the will to act to protect the health and safety of South Burlington. A corollary question is whether, Burlington will face any consequences if the city fails to act, and South Burlington suffers the grievous harm the Air Force and others predict.
Dumont, who represents the Stop-the-F-35 Coalition, argues that Blackwood's memo is, in effect, mostly smoke and mirrors:
"None of the cases cited in the memo address the situation in Burlington. Uncited cases and scholarly articles explain that in the Burlington situation local action is acceptable if the purpose is within the traditional purposes of local government -- protection of the public health of the local public -- and if the effect is not to directly control military affairs. For example, there is the case of Arthur D. Little v City of Cambridge, decided by the highest court in Massachusetts. The City there adopted a regulation, like the proposed resolution here, which had the purpose of protecting local public health. The regulation banned all manufacture of chemical weapons in
When the chemicals weapons maker, Arthur D. Little, sued to continue making chemical weapons in Cambridge, the Massachusetts Supreme Court forcefully rejected Little's claims and emphasized the city's right and duty to enact laws "to protect the public health and welfare". municipal health and safety regulations, such as that at issue here, carry a heavy presumption of validity, and are only rarely preempted by Federal law."
According to Dumont, there will a resolution of this sort offered to the city council on October 28: "it is explicitly a public health measure."
In addition to the four Progressives on the city council, there is one Republican, two independents, and seven Democrats. The Democrats are all under pressure from their party leaders -- including U.S. Sen. Patrick Leahy, Rep. Peter Welch, and Gov. Peter Shumlin -- to support the F-35, although none of these "leaders" has offered a coherent argument as to how this nuclear-capable bomber serves the common good.
Ultimately the question comes down to whether Democratic loyalty to Pentagon extravagance is some kind of justification for Burlington to impose damage on its neighbors against their will. It should be unconscionable.
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