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BALTIMORE AND OHIO R. CO. v. OBERLY

No. 85-5272.

837 F.2d 108 (1988)

The BALTIMORE AND OHIO RAILROAD COMPANY, d/b/a One of the Chessie System Railroads; the Baltimore and Philadelphia Railroad Company, d/b/a One of the Chessie System Railroads; Mount Clare Properties (Delaware), Inc; and Chessie Motor Express, Inc. v. Charles M. OBERLY, III, Attorney General of the State of Delaware and John E. Wilson, III, Secretary of the Department of Natural Resources and Environmental Control of the State of Delaware. Appeal of Charles M. OBERLY, III and John E. Wilson, III.

United States Court of Appeals, Third Circuit.

Reargued August 3, 1987.

Decided January 8, 1988.

As Amended February 12, 1988.

Attorney(s) appearing for the Case

John J. Polk (argued), Deputy Atty. Gen., Delaware Dept. of Justice, Wilmington, Del., for appellants.

F. Henry Habicht, II, Asst. Atty. Gen., Peter R. Steenland (argued), Karen L. Florini, Land and Natural Resources Div., U.S. Dept. of Justice, Francis S. Blake, Gen. Counsel, Nancy Ketcham-Colwill, U.S.E.P.A., Washington, D.C., for amicus curiae U.S.

William E. Manning (argued), Jeffrey S. Estabrook, Duane, Morris & Heckscher, Wilmington, Del., for appellees.

Richard J. Flynn (argued), Kevin Hawley, Sidley & Austin, Washington, D.C., for amicus curiae The Ass'n of American Railroads.

Before HIGGINBOTHAM, SLOVITER and MANSMANN, Circuit Judges.

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

This interlocutory appeal, returned to us by the United States Supreme Court, raises a legal question under the Supremacy Clause: whether Delaware's noise control statute and regulations thereunder are facially preempted by section 17 of the Noise Control Act of 1972, 42 U.S.C. § 4916(c) (1982). Because we conclude that the state regulatory scheme at issue in this appeal is not facially...

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