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.  
 

Plan Now, If You Plan to Sell Later: Restrictions on Use of Airport Revenues

If you own a commercial airport that has accepted federal grants and you have sold all or part of the airport’s property, you, no doubt are aware of the provisions of 49 U.S.C. § 47107(l)(5)(A). That provision of the Federal Aviation Reauthorization Act of 1996, as amended, limits any request to recoup capital an operating costs from the sale of airport property to those expenses that occurred within 6 years after the expense has been incurred: 

any request by a sponsor or any other governmental entity to any airport for additional payments for services conducted off of the airport or for reimbursement for capital contributions or operating expenses shall be filed not later than 6 years after the date on which the expense is incurred

49 U.S.C. § 47107(l)(5)(A). That new terminal that the City spent $1 million out of its General Fund on seven years ago? According to § 47107(l)(5)(A), you cannot recoup the expense now. Those operating deficits that the airport has been running for the past ten years that the City has covered? Only the last six years can be recouped. Although you may not be planning on selling all or part of the airport now, or even five years from now, it makes sense, because of § 47107(l)(5)(A) to ensure that the owner’s expenses are currently being paid by the airport by requesting reimbursement on a timely basis.

 

 

Section 47107(l)(5)(A) is the outgrowth of the FAA’s and Congress’ concern about “revenue diversion” by the owners and operators of commercial airports. The Airport and Airway Improvement Act of 1982, as amended, which established the AIP, requires sponsors to use all of an airport’s revenue for its capital and operating costs and not divert revenue for nonairport purposes. 49 U.S.C. § 47107(b). The intent of this provision was to ensure that airports receiving federal grants also used the revenue generated at the airport to pay for its costs. In 1987, the restrictions on revenue diversion were tightened to limit the use of airport expenditures to activities that were not only “directly” but also “substantially” related to air transportation. Then, in 1991, in response to a FAA request, the Department of Justice issued an opinion stating that public owners of airports are entitled to unreimbursed capital and operating expenses from the proceeds of an airport’s sale or lease. The opinion also stated that no time limits exist on the right to receive compensation for these expenses. However, the Federal Aviation Reauthorization Act of 1996 added § 47107(l)(5)(A) limiting requests to recoup capital and operating costs to those made no later than six years after the expense occurred.  

The statute of limitations was later included in the FAA’s “Policy and Procedures Concerning the Use of Airport Revenue.” 64 Fed.Reg. 7696 (Feb. 16, 1999). However, the FAA soften the blow a bit by stating that its policy “provides flexibility to structure future contributions to permit reimbursement over a longer period of time in order to promote the financial stability of the airport.” 64 Fed.Reg. at 7702. Moreover, the FAA Policy states that “if the contribution was a loan to the airport, and clearly documented as interest-bearing loan at the time it was made, the sponsor may repay the loan principal and interest from airport funds.” 64 Fed.Reg. at 7718.   Thus, in order to avoid having to settle for reimbursement of the past six years of expenses when an airport (or part thereof) is sold, the owner/operator of a commercial airport should ensure that it files its requests for reimbursement with the airport for the owner’s capital contributions and operating expenses on an ongoing basis, and not wait for airport property to be sold.