Foreign Relations of the United States, 1969–1976, Volume E-15, Part 2, Documents on Western Europe, 1973–1976, Second, Revised Edition

91. Telegram Tohak 94 From the President’s Assistant for National Security Affairs (Scowcroft) to Secretary of State Kissinger¹

Washington, May 5, 1976.

SUBJECT

• Concorde

1. The subject of Concorde’s access to the U.S.—and, in particular the impediment posed by the Fairfax County noise ordinance—may well arise in your discussions with Giscard.

2. The background on this matter is that Fairfax County recently passed an aircraft noise ordinance which would have the effect of banning Concorde. There is no question that this is an illegal intrusion into an area reserved to the Federal Government and airport owners. The only issue is how most effectively to nullify this ordinance and to minimize the possibility of an embarrassing incident when Concorde service to Dulles commences on May 24.

3. There have been several discussions between the lawyers representing the British and French airlines and the Department of Transportation as to how to deal with this problem. In addition, I have met twice with Ramsbotham and Coleman (separately). There has developed a strong difference of opinion regarding who should take the first step of initiating a court challenge. Coleman holds that if DOT were to be the one to initiate the action against Fairfax County, it would (a) set a legal precedent that DOT wants to avoid, and (b) allow the County to drag in extraneous issues which could delay a declaratory court judgment negating the ordinance. The airlines’ lawyers, strongly supported by Kosciusko-Morizet, believe the most effective intervention would be on the part of the Federal Government. They believe as a matter of principle that it is our responsibility to deal with questions of constitutionality and not that of foreign airlines. State’s lawyers side with Coleman.

4. It is conceivable that the ordinance will be in operation on May 24th. In such an event, the prosecutor of Fairfax County has indicated that he is prepared to attach the aircraft temporarily but not to interfere with the crew. I understand that the aircraft could be bailed back almost immediately. These actions would then precipitate the court test of the ordinance. The disadvantages of letting things reach this state are (1) the publicity that would attend the sheriff taking possession of the ownership papers of the aircraft, and (2) the possibility that such harassment might continue for subsequent flights until a court has acted.

5. Following my last conversation with Ramsbotham, he talked to Kosciusko and has now informed me he convinced the French that the airlines should be the ones to seek the injunction. If true, that is a very encouraging breakthrough. I will keep you posted.

6. In addressing this issue with Giscard, you may want to stress that we share with the French and British the desire to remove this illegal local noise ordinance as an obstruction to normal service to Dulles. The question is how to achieve this objective in the most effective manner. The lawyers are continuing to discuss the best legal approach.

7. The other problem for Concorde is entry into JFK. The Port of New York Authority has banned flights for six months while the experience of Concorde service at Dulles is evaluated. Air France and British Airways are contesting this in court. (The legal issues are substantially different at JFK relative to Dulles, hence the willingness on the part of the airlines to initiate court action.)

8. Giscard may indicate that it is hard to explain to the French people why the USG is not doing more to enforce Coleman’s favorable decision. The broad answer is that Federal authority is not comprehensive in this area and airport owners exercise certain rights. Of course, the owners are not permitted to be discriminatory, to interfere unfairly with air commerce, or to violate international agreements. We will be prepared to take an appropriate amicus role to assure that the New York Authority is following a legal and fair policy. The airlines are well represented and the issues are properly under court consideration.

Warm regards.

1. Summary: Scowcroft reported the latest developments in the Concorde issue.

   Source: Ford Library, National Security Adviser, Presidential Subject Files, Box 1, Concorde. Confidential. Sent via Black Patch. The telegram is the copy as approved for transmission. From May 3 to 6, Kissinger was in Nairobi, Kenya, to attend the United National Conference on Trade and Development. Efforts by Fairfax County, Virginia, officials to stop Concorde service to Dulles International Airport were blocked; the first flights arrived on May 24. On October 17, 1977, the Supreme Court overturned the temporary ban against Concorde flights into Kennedy International Airport; passenger service began on November 22.