Connecticut State Statute Limiting the Length of the Runway at Tweed-New Haven Airport Resists Federal Preemption Challenge

Tweed-New Haven Airport, seeking to extend its 5,600 foot runway to 7,200 feet, has run into an unexpected roadblock.  A Federal Magistrate in the United States District Court for the District of Connecticut has determined that Connecticut’s Gen. Stat. 15-120j(c) (providing, in part, that “[r]unway 2/20 of the airport shall not exceed the existing paved runway length of five thousand six hundred linear feet”), is not preempted by federal law.  Tweed-New Haven Airport Authority v. George Jepsen, in His Official Capacity as Attorney General for the State of Connecticut, Case No. 3:15cv01731(RAR).  The Magistrate concludes that the state statute “does not interfere with plaintiff's ability to comply with federal aviation safety standards,” because: (1) the “Plaintiff has failed to present evidence that the runway length in this instance is a component part of the field of airline safety,” and, thus, does not violate the Federal Aviation Act, 49 U.S.C. § 40101, et seq., Memorandum of Decision, p. 39; (2) the statute is not expressly preempted by the provision of the Airline Deregulation Act (“ADA”) (49 U.S.C. § 41713(b)(1)) that “prohibits states from enforcing any law ‘relating to rates, routes, or services’ of any air carrier,” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378-79 (1992), because the Connecticut statute does not “relate[] to rates, routes or services [of airlines],” Memorandum of Decision, p. 43; and (3) the Airport and Airway Improvement Act, 49 U.S.C. § 47101, et seq. (“AAIA”), “does not impose any requirements or authorize the promulgation of federal regulations, unless funding is being sought,” Memorandum of Decision, p. 47.  

The Court’s decision contravenes the plain face of the FAA Act for the following reasons:  

First, with respect to the preemptive authority of the FAA Act, that Act incorporates virtually everything related to the safety of air navigation, both in the navigable airspace, and on the airport, including the design and construction of runways and taxiways.  

“The FAA preempts the entire field of aviation safety through implied field preemption. The FAA [Federal Aviation Act] and regulations promulgated pursuant to it establish complete and thorough safety standards for air travel, which are not subject to supplementation by, or variation among, state laws.”  
Montalvo v. Spirit Airlines, 508 F.3d 464, 468 (9th Cir. 2007) [emphasis added]; see also Burbank-Glendale-Pasadena Airport Authority v. City of Los Angeles, 979 F.2d 1338, 1339 (9th Cir. 1992) re: preemption of authority over the design of runways and taxiways.  In reality, FAA’s jurisdiction extends to a determination of whether a runway and/or taxiway “meets design standards . . . and provides for the safe operation of aircraft,” FAA Order 5190.6B, App. R, § VI.A.1.  Thus, FAA’s mandate to ensure “safe operation of aircraft” is not limited merely to aircraft in flight, Id. at § V.A.2., but also includes the layouts of runways and taxiways at an airport, their length, and the durability of their pavement.  Id.  
 
Second, with respect to the preemptive authority of the ADA, the Magistrate draws an arbitrary distinction between the length of the runway, as mandated by the Connecticut statute, and the prohibition on the enactment of local laws governing “rates, routes, or services of airlines.”  No such distinction exists.  Given FAA’s preemptive authority over airport design, as well as the operation of aircraft in the navigable airspace, it is unquestionable that “airline routes” are at least partially determined by the length and layout of the runway they have to use, i.e., if the runway is too short, the airport is inaccessible to certain aircraft.  There is, therefore, a distinct relationship between the “rates, routes, or services of airlines,” and the length of the runways they must use.  
 
Finally, the control of the AAIA extends far beyond the simple power of “funding,” as claimed by the Court.  Rather, it mandates that 
“The owner or operator [of an airport] will not make or allow any alteration in the airport or any of its facilities if the alteration does not comply with the plan the Secretary approves and the Secretary is of the opinion that the alteration may affect adversely the safety, utility or efficiency of the airport.”  
See 49 U.S.C. § 47107(a)(16)(C) [emphasis added].  There is, in addition, a strict and draconian penalty for any violation of the terms of the AAIA that goes far beyond the deprivation of funding.  
“When an alteration in the airport or its facility is made and does not conform to the approved plan and that the Secretary decides adversely affects the safety, utility or efficiency of any property on or off the airport that is owned, leased or financed by the government, the owner of operator . . . will – (i) eliminate the adverse effect in a way the Secretary approves; or (ii) bear all costs of relocating the property or its replacement to a site acceptable to the Secretary and of restoring the property or its replacement to the level of safety, utility, efficiency, and cost of operations that existed before the alteration was made. . .” 
49 U.S.C. § 47107(a)(16)(D).  
 
In summary, neither the parties nor the Court delved deeply enough into the wealth of authorities establishing the unquestioned delegation of the determination of safety of airport planning, design, and construction, including that of runways and taxiways, to the federal government.  An appeal to the Second Circuit should establish conclusively that the Connecticut statute at issue is, under the relevant federal standards, preempted and inapplicable to Tweed-New Haven Airport and its runway.  
 

Make No Mistake: The Supreme Court's Decision on Obamacare Has No Impact on Applicable Aviation and Airport Law

It has come to our attention that a legal colleague has authored a blog analogizing the United States Supreme Court’s recent decision upholding the Obama Administration’s health care legislation (“Obamacare”), National Federation of Independent Business, et al. v. Sebelius, et al., 567 U.S. ___ (2012), to the Federal statutes preempting state and local control of the regulation of aircraft operations and their free and open access to airports.  The blog attempts to make the case that, because the Court ruled that the Commerce Clause of the United States Constitution does not justify requiring all uninsured Americans to purchase health insurance, so the Commerce Clause somehow cannot justify exclusive Federal regulation of the “safety of navigable airspace,” 49 U.S.C. § 40103(a), and airlines “rates, routes and charges,” 49 U.S.C. § 41713(b)(1).  This analysis not only manifestly misapprehends the clear distinction between the two cases, but can also send a damaging message to those who justifiably seek legally supportable means of controlling airport impacts. 

Specifically, the argument that the decision on Obamacare somehow lends support to local regulation of airports turns the Sebelius decision on its head.  In the Obamacare decision, the Court held, regarding the universal mandate to purchase insurance, that the Commerce Clause could not be used as a pretext to force the uninsured, who have not chosen to voluntarily engage in interstate commerce through the purchase of health insurance, to engage in commerce involuntarily by mandating such a purchase. 

In the context of Federal regulation of airports, however, the Commerce Clause has been applied to ensure that voluntary entrants into interstate commerce, i.e., the airlines and passengers, will not be obstructed by a web of disparate local regulations.  In upholding this application of the Commerce Clause to voluntary entrants into the air transportation system, as it has done consistently since the passage of the Federal Aviation Act in 1958, 49 U.S.C. § 40101, et seq., as amended, the Court held:

“The Federal Aviation Act requires a delicate balance between safety and efficiency, [cite omitted], and the protection of persons on the ground. . . The interdependence of these factors requires a uniform and exclusive system of federal regulation if the congressional objectives underlying the Federal Aviation Act are to be fulfilled.” 

City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 638-639 (1973).

In fact, the airline/airport industry, which developed for the express purpose of facilitating business between states, and the United States and other countries (witness the impact of Lindbergh’s transatlantic flight in 1927), is the quintessential “voluntary” participant that our Founding Fathers authored the Commerce Clause to protect. 

In short, it is important to correct any false impression about the applicability of the Sebelius decision in the airline context, in order to save those readers looking for solutions to the widespread problem of airport impacts from wasting resources attempting to bring the national aviation system under local control.  Such time could be far better spent on the employment of other more effective strategies based on environmental and other statutes for working toward a better balance of commerce and its impacts.