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.  

Ninth Circuit Calls FAA to Task on Environmental Impacts of New Runway

In what might be a surprising decision in any other Circuit, the United States Court of Appeals for the Ninth Circuit issued a ruling in Barnes v. U.S. Dept. of Transportation, United States Court of Appeals for the Ninth Circuit, Case No. 10-70718, August 25, 2011, which, while narrow, begins the process of eroding both the Federal Aviation Administration’s (“FAA”) long held position that “aviation activity . . . will increase at the same rate regardless of whether a new runway is built or not,” Barnes, at 16285, and the Federal Court’s traditional deference to it. City of Los Angeles v. FAA, 138 F.3d 806, 807-08, n. 2 (9th Cir. 1998).

In Barnes, petitioners challenge the FAA’s environmental review of the proposed addition of a runway at Hillsboro Airport (“HIO”), a general aviation reliever airport for Portland International Airport (“PDX”), operated by the Port of Portland, and located in the adjacent City of Hillsboro, Oregon (“Project”). Specifically, petitioners challenged, among other things, the FAA’s decision to prepare only an Environmental Assessment (“EA”) and Finding of No Significant Impact (“FONSI”) not a full Environmental Impact Statement (“EIS”), which petitioners claim was necessary due to the potential environmental impacts of increased demand for HIO resulting from the addition of the runway.

First, expressing a view in contradiction with that a number of other Circuits, the court took issue with FAA’s consistent argument that “[T]he project will not have growth inducing effects on aviation activity.” Barnes, at 16285. The court pointed to the absence of any analysis in the EA of the new runway’s growth-inducing impacts. “The agencies are unable to point to anything in the record showing that they in fact considered the possibility that expanding HIO would lead to increased demand and increased airport operations,” Barnes, at 16281. The court, therefore, relied on FAA’s statement in the administrative record that “a new runway is ‘the most effective capacity enhancing feature an airfield can provide.’” Barnes, at 16281. In the absence of hard analysis establishing the lack of growth inducing impact, the court declined to take FAA’s “word for it and not question their conclusory assertion in the EA that a new runway would not increase demand.” Barnes, at 16285.

Second, the court declined to grant the “significant deference that courts give aviation activity forecasts actually performed by the FAA.” Barnes, at 16285-86. While the court agreed that “when it comes to airport runways, it is not necessarily true that ‘if you build it they will come,’” Barnes, at 16286, quoting National Parks and Conservation Association v. United States Department of Transportation, 222 F.3d 677, 680 (9th Cir. 2000), it would not grant deference because FAA “failed to conduct a demand forecast based on three, rather than two, runways.” Barnes, at 16287.

The court, apparently realizing the groundbreaking nature of its decision, then proceeded to narrow the decision’s scope. It reconciled seemingly contradictory opinions in Seattle Community Federation v. FAA, 961 F.2d 829, 835 (9th Cir. 1992) [“[R]emand to the FAA was unnecessary although the FAA did not consider the impacts of an expected increase in air traffic after changes in flight patterns were implemented,” Barnes, at 16288], and Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 580 (9th Cir. 1998), [“[T]he FAA did not have to consider the impacts of an increase in air traffic resulting from a new flight arrival path because ‘the project was implemented in order to deal with existing problems . . .’”, Barnes, at 16288]. The court rationalized that unlike the flight patterns and flight arrival path at issue in Morongo and Seattle Community Council Federation, “this case involves a major ground capacity expansion project.” Barnes, at 16288.

The court then went on to further narrow the definition of “major ground capacity expansion project” and, thus, its ruling, by excluding “terminal improvement project[s],” City of Los Angeles, supra, 138 F.3d at 808; taxiway construction, Town of Winthrop v. FAA, 535 F.3d 1, 5 (1st Cir. 2008); and “improvements to an existing runway,” City of Olmsted Falls, Ohio v. FAA, 292 F.3d 261, 272 (D.C. Cir. 2002).

In summary, the Ninth Circuit has carved out a new, exclusive niche for projects that include construction of additional runways, because “our cases have consistently noted that a new runway has a unique potential to spur demand which sets it apart from other airport improvements like changing flight paths, improving a terminal or adding a taxiway . . .” Barnes, at 16288. Therefore, in the case of a runway addition, “[E]ven if the stated purpose of the project is to increase safety and efficiency, the agencies must analyze the impacts of the increased demand attributable to the additional runway as growth inducing effects . . .” Barnes, at 16289.

While we believe the court may have drawn a bright line demarcation between types of “major ground capacity expansion projects” where none exists in reality, Barnes constitutes a significant step toward recognition of the full complement of airport expansion impacts often ignored in FAA’s environmental analyses.

North Airfield Safety Study Final Report Confirms Earlier Conclusion That the North Airfield is Safe

The Los Angeles International Airport North Airfield Safety Study Final Report (“Final Report”), published on May 11, 2010, looks very much like the draft. The Final Report, like the draft, concluded that no safety problem exists on the two runways of the North Airfield. It further concludes that an additional separation of the runways by 340 feet is unnecessary for safety purposes, although useful for increasing capacity. Finally, the study concludes that an additional separation of 100 feet, originally proposed by the Cities of Inglewood and El Segundo, which would allow the addition of a center taxiway, would be sufficient to accommodate any remaining safety concerns. The study, however, reaches the correct conclusions for the wrong reasons.

The Final Report, like the draft, ignores the study’s original directive from the Board of Airport Commissioners, to determine the impact of the various runway configurations on the incidence of runway “incursions,” or the conflict of two or more aircraft or vehicles on a runway. Instead, it concentrates on runway collisions and fatalities, an infinitesimally small subset of incursions in general. Moreover, also like the draft, the Final Report declines to cite the sources of the data used in reaching its conclusions.

Finally, and perhaps most crucially, Los Angeles World Airports didn’t have to spend almost half a million dollars on six eminent professors (none of whom have any hands on expertise in air traffic control) to determine that the North Runway Complex is safe. In 2006, the City of Inglewood submitted an analysis which conclusively demonstrated, using Federal Aviation Administration data: (1) the relative absence of incursions on the North Airfield between the years 2000 and 2006; and (2) the minor nature of the incursions that did occur. The Cities of Inglewood and Culver City's comments on the Draft North Airfield Safety Report updated that analysis, but lead to the same conclusion.

In summary, the Board of Airport Commissioners spent valuable dollars to reconfirm a view long held by the pilot and controller community, and reflected in their comments on the draft report and surveys taken as part of the creation of the North Airfield Safety Study - the North Runway Complex at LAX would be as safe as humanly possible with: (1) a center taxiway; (2) better runway lighting and marking; and (3) better pilot and controller training. Additional separation of 340 feet would be throwing good money after bad.

FAA Issues ROD Approving Expansion of Ft. Lauderdale Airport

In the January 9, 2009, edition of the Federal Register, the FAA announced that the Record of Decision (ROD) for the development and expansion of Runway 9R/27L and other associated airport projects at Fort Lauderdale-Hollywood International Airport is now available.  With the publication of this notice in the Federal Register, opponents of the project have 60 days (i.e., until Tuesday, March 10, 2009) to file a Petition for Review of the ROD and the Final Environmental Impact Statement (FEIS).

The FAA identified "Alternative B1b" as its "preferred alternative" in the ROD.  That was also its preferred alternative in the FEIS.  This alternative includes the expansion of Runway 9R/27L ti an overall length of 8,000 feet and width of 150 feet.  The runway will extend to the east without encroaching onto NE 7th Avenue and would be elevated over the Florida East Coast Railway and U.S. Highway 1.  The western extent of the runway is the Dania Cut-Off Canal.  Alternative B1b also includes the following projects:

  • construct a new full-length parallel taxiway 75 feet wide on the north side of Runway 9R/27L with separation of 400 feet from 9R/27L;
  • contruct an outer dual parallel taxiway that would be separated from the proposed north side parallel taxiway by 276 feet;
  • construct connecting taxiways from the proposed full-length parallel taxiway to existing taxiways;
  • construct an Instrument Landing System (ILS) for landings on Runways 9R and 27L;
  • Runway 13/31 would be decommissioned and permanently closed due to the increased elevation of the expanded Runway 9R/27L at its intersection with Runway 13/31.

Opposition to the expansion centers around the increased noise that the expansion will bring, as well as damage to the surrounding environment.

Although the Federal Register notice states that the ROD is available on the FAA's website, as of the posting of the article it was not.  The Airport's website does have a copy of the unsigned, undated ROD, along with the appendices, which includes responses to the comments that the FAA received.  N.b., since the ROD on the Broward County site is unsigned and undated, we calculated the 60 days based on the letter sent from the FAA to Broward County that indicates that the FAA does not consider the ROD "published" until the announcement appears in the Federal Register.