UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2010
February 10, 2011
GOODSPEED AIRPORT LLC, PLAINTIFF-APPELLANT,
EAST HADDAM INLAND WETLANDS & WATERCOURSES COMMISSION, JAMES VENTRES, DEFENDANTS-APPELLEES, STATE OF CONNECTICUT, AMICUS CURIAE.*FN1
The opinion of the court was delivered by: Wesley, Circuit Judge:
Goodspeed Airport v. Dep't of Envtl. Prot. et al.
Argued: January 10, 2011
Before: POOLER, KATZMANN, and WESLEY, Circuit Judges.
Appeal from judgment of the United States District Court for the District of Connecticut (Kravitz, J.), entered on January 13, 2010 after bench trial, in favor of Defendants- Appellees, determining that the Connecticut Inland Wetlands and Watercourses Act and the Connecticut Environmental Protection Act, as well as municipal regulations pursuant thereto (specifically the imposition of a permit requirement on cutting trees on protected wetlands), are neither expressly nor impliedly preempted by the Federal Aviation Act, the Airline Deregulation Act, or Federal Aviation Agency regulations promulgated thereunder.
Plaintiff-Appellant Goodspeed Airport LLC appeals from
a judgment of the United States District Court for the
District of Connecticut (Kravitz, J.), entered after a bench trial,
in favor of Defendants-Appellees East Haddam Inland Wetlands
Watercourses Commission and James Ventres. Goodspeed
sought declaratory and injunctive relief establishing
protecting its right to cut certain trees on its
part of which is protected wetlands. Under Connecticut
and municipal regulations, a person must apply for
to undertake activities affecting wetlands. We write to
clarify what to date this Court has suggested only in
that Congress has established its intent to occupy the
field of air safety, thereby preempting state regulation
that field. However, the state and local laws and
scheme at issue in the instant appeal do not
intrude upon the field of air safety to be preempted. Nor
they expressly preempted by the Airline Deregulation
Accordingly, the judgment of the district court is AFFIRMED.
The facts of this case, as well as the statutory and regulatory context, are discussed at length in the district 17 court's thorough and well-reasoned opinion. Goodspeed 18 Airport, LLC v. East Haddam Inland Wetlands & Watercourses 19 Comm'n (Goodspeed), 681 F. Supp. 2d 182 (D. Conn. 2010). We 20 discuss only those aspects of the case necessary to an 21 understanding of the issues presented on appeal. 22 Appellant Goodspeed Airport (the "Airport") is a small, 1 state-licensed, privately owned and operated commercial 2 airport in East Haddam, Connecticut. Appellee James Ventres 3 is the enforcement officer for Appellee East Haddam Inland 4 Wetlands and Watercourses Commission ("IWWC").
The IWWC is a municipal regulatory body established 6 pursuant to the Connecticut Inland Wetlands and Watercourses 7 Act ("IWWA"). The IWWA declares that it is "the public policy 8 of [Connecticut] to require municipal regulation of activities 9 affecting the wetlands and watercourses within the territorial 10 limits of the [state's] various municipalities or districts."
11 Conn. Gen. Stat. § 22a-42(a). The IWWC may issue cease and 12 desist orders and bring actions to enforce the act's 13 provisions. Persons within its jurisdiction are required to 14 apply to the IWWC for permission before undertaking activities 15 affecting protected land.
16 The Airport's property is partly composed of protected 17 wetlands. This protected land contains trees and other 18 vegetation which the Airport wishes to cut down. In January 19 2001, the IWWC issued Goodspeed a Cease and Desist Order (the 20 "Order") instructing it to refrain from "all regulated 21 activity within seventy-five feet of inland/wetlands and 22 watercourses (regulated areas) on your property[.]" The Order 1 cited as its authority certain regulations of the Town of East 2 Haddam, adopted and promulgated under Connecticut General 3 Statute Section 22a. This Order was later withdrawn, but 4 Appellees continue to assert that the Airport is obliged to 5 obtain a permit before cutting the trees.
6 The Airport contends - and Appellees do not contest - 7 that some of the trees it wishes to cut down fall within the 8 definition of "obstructions to air navigation" under 14 C.F.R. 9 Part 77 ("FAA Regulations"). The FAA Regulations establish 10 standards for identifying these obstructions, defining an 11 imaginary surface in the shape of a bowl around regulated 12 runways. Id. § 77.23. Objects breaching this imaginary 13 surface are declared to be obstructions.*fn2 Id.
14 The Airport argues that, since these trees qualify
15 obstructions, they are therefore hazards to air
16 under the FAA Regulations and the otherwise applicable
17 and local statutory and regulatory framework establishing
18 IWWC's permit process is preempted. Specifically, the
contends it should be allowed to take whatever steps
necessary to remove the trees without first applying for
permit, and that both IWWA and the Connecticut
Protection Act ("CEPA," codified at Conn. Gen. Stat. §§
to 22a-20) are preempted as to any restriction they
otherwise impose on this activity.
The Airport offers two theories of preemption. First, it 8 argues that the state and local statutes, regulations and 9 actions pursuant to IWWA and CEPA are impermissible intrusions 10 upon a field of regulation which Congress (via the Federal 11 Aviation Act of 1958 ("Aviation Act") and the FAA Regulations 12 promulgated thereunder) has indicated its intent to entirely 13 occupy. Second, the Airport argues for express preemption 14 pursuant to language in the Airline Deregulation Act of 1978 15 ("ADA").
The Airport sought a declaratory judgment
17 its right to cut down the trees without applying to the
18 for a permit. It also sought to enjoin the defendants
19 bringing any action under state or local law to prohibit
20 otherwise regulate the removal of any trees
obstructions to air navigation.*fn3 After a bench trial,
district court ruled that neither theory of preemption
3 established. Specifically, the district court found
4 while Congress in passing the Aviation Act intended to
5 the entire field of air safety, the state and local
6 regulations and actions in question do not intrude into
7 field and are therefore not field-preempted. Further,
8 district court found no express preemption as a result of
9 ADA language. The Airport timely appealed from this
10 For the reasons stated below, we agree with the district
on all points.
Federal preemption of state law can be express or implied. See New York SMSA Ltd. P'ship v. Town of Clarkstown, 612 F.3d 97, 104 (2d Cir. 2010) (per curiam).*fn5 To establish implied preemption, evidence of Congressional intent to displace state authority is required. See Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372 (2000). There is a rebuttable presumption against the preemption of the states' exercise of their historic police power to regulate safety matters. See New York State Rest. Ass'n v. New York City Bd. of Health, 556 F.3d 114, 123 (2009) (citing Hillsborough Cnty., Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 718 (1985)).
The Airport argues that, once a tree becomes an 13 "obstruction" to air navigation under the FAA Regulations, the 14 local permit process becomes ipso facto inapplicable to the 15 Airport's efforts to trim or remove that tree. However, it 16 does not claim that the permit process is entirely preempted 17 or invalidated by federal law, merely that it cannot operate 18 so as to interfere with the removal of obstructions to air 19 navigation.
Generally, facial challenges must demonstrate that there
However, this showing need not be made when a plaintiff
claims that "what is preempted [ ] is the permitting process
itself, not the length or outcome of that process in
particular cases." Green Mountain R.R. Corp. v. Vermont, 404 F.3d
638, 644 (2d Cir. 2005).
is no possible set of conditions under which the challenged state permit process could be constitutional. See, e.g., Cal. Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 580 (1987).
On their face, the IWWA, CEPA, and the local permit process established pursuant thereto do not address issues of air safety. Nor do they prohibit removal of the trees; they merely impose a permit requirement on their removal. A proper 13 examination of the Airport's claim therefore requires us to consider whether federal law occupies the field of air safety, and if it does, whether the state laws and regulations intrude upon that field.
"The United States Government has exclusive sovereignty 18 of airspace of the United States." 49 U.S.C. § 40103(a)(1).
The district court took this language, as well as the overall statutory and regulatory scheme initiated by the Aviation Act, as evidence of "a clear congressional intent to occupy the entire field of aviation safety to the exclusion of state law." Goodspeed, 681 F. Supp. 2d at 201.
In Air Transport Ass'n of America, Inc. v. Cuomo (ATA), 3 520 F.3d 218, 225 (2d Cir. 2008), this Court observed that 4 several of our sister circuits, and several district courts 5 within our own circuit, have concluded that Congress intended 6 to occupy the entire field of air safety and thereby preempt 7 state regulation of that field. ATA examined evidence of 8 Congressional "intent to centralize air safety authority and 9 the comprehensiveness of [ ] regulations pursuant to that 10 authority," under both the Aviation Act and the ADA. Id.
11 However, as the district court was careful to observe, ATA 12 stopped short of formally holding that Congress intended to 13 occupy the field of air safety. See Goodspeed, 681 F. Supp. 14 2d at 199. Today we join our sister circuits.*fn6 15 But concluding that Congress intended to occupy the field 16 of air safety does not end our task. As the district court 17 recognized, the inquiry is twofold; we must determine not only 18 Congressional intent to preempt, but also the scope of that preemption. "The key question is thus at what point the state regulation sufficiently interferes with federal regulation that it should be deemed pre-empted[.]" Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 107 (1992). We agree with the district court that although Congress intended to occupy the entire field of air safety, the state laws at issue here do not interfere with federal laws and regulations sufficiently to fall within the scope of the preempted field.
Goodspeed, 681 F. Supp. 2d at 201-02.
The district court correctly distinguished a recent case, 11 also from the District of Connecticut, which held that the 12 Aviation Act impliedly preempts certain town regulatory 13 actions.*fn7 Tweed-New Haven Airport Auth. v. Town of East 14 Haven, Conn. (Tweed), 582 F. Supp. 2d 261, 267 (D. Conn. 15 2008). There, municipal defendants sought to prevent a 16 commercial airport from "obstruct[ing] construction of a 17 federally-mandated, federally-funded, and state- and 18 federally-approved" runway project intended to enhance 19 aviation safety. Id. at 263.
The local regulatory action at issue in Tweed constitutes a much more direct intrusion of local authority on the 2 preempted field of air safety than do the regulatory actions challenged here. Unlike Tweed-New Haven Airport, Goodspeed Airport is not licensed by the FAA; it is not federally funded, and no federal agency has approved or mandated the removal of the trees from its property. Indeed, in its response to a formal inquiry from the district court in this case, the federal government disclaimed any authority to order the trees' removal.*fn8 Therefore, while in Tweed the construction project was approved, indeed required, by the federal regulatory authority, in this case there is no federal interest in the Airport's proposed actions.
Moreover, IWWA and CEPA are environmental laws that
14 not refer to aviation or airports. Neither statute
15 the trimming or removal of any tree located in a
16 area. Instead, the Wetlands Act requires only that
17 obtain a permit before removing the trees in question.
18 Conn. Gen. Stat. § 22a-42a. Thus, Appellant's contention
IWWA and CEPA have the impermissible "effect" of
2 the removal of the obstructions" under the Aviation
3 Appellant's Brief at 20, is unsupported. "[P]art of the
4 empted field is defined by reference to the purpose of
5 state law in question . another part of the field
6 defined by the state law's actual effect[.]" English v.
7 Elec. Co., 496 U.S. 72, 84 (1990). The state laws at
8 here do not enter the scope of the preempted field in
9 their purpose or their effect.
10 In occupying the field of air safety, Congress did not 11 intend to preempt the operation of state statutes and 12 regulations like the ones at issue here, especially when 13 applied to small airports over which the FAA has limited 14 direct oversight. Appellant's contention that the IWWC's 15 permit application process is impliedly preempted by federal 16 law is without merit.
17 Appellant also argues that both IWWA and CEPA are 18 expressly preempted by language in the Aviation Act, as 19 modified by the ADA, codified at 49 U.S.C. § 41713(b)(1): 20 Except as provided in this subsection, a State, 21 political subdivision of a State, or political 22 authority of at least 2 States may not enact or 23 enforce a law, rule, regulation, or other provision 24 having the force and effect of law related to a 25 price, route, or service of an air carrier that may 1 provide air transportation under this subpart. 2 In ATA, this Court found the New York Passenger Bill of 3 Rights expressly preempted by § 41713(b)(1): "We hold that 4 requiring airlines to provide food, water, electricity, and 5 restrooms to passengers during lengthy ground delays does 6 relate to the service of an air carrier and therefore falls 7 within the express terms of the ADA's preemption provision."
520 F.3d at 223. Today, by contrast, we hold that the ADA 9 does not preempt applicable state and local environmental and 10 land use statues and regulations that impose permit 11 requirements whose impact on air carriers, if any, is remote.
See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 390 13 (1992) (cautioning that, while even indirect impact on air 14 carriers may be preempted, state action with "tenuous, remote, 15 or peripheral" effects on air carriers is not preempted) 16 (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n.21 17 (1983)).
The state and local statutes, regulations and actions at 19 issue here are neither field-preempted by the language of the 20 Aviation Act, nor expressly preempted by the ADA. 21 Accordingly, Appellant is obliged to observe the appropriate 22 state procedures.
Although we hold that Congress has indicated its intent to occupy the entire field of aviation safety, the generally 5 applicable state laws and regulations imposing permit 6 requirements on land use challenged here do not, on the facts 7 before us, invade that preempted field. Further, the impact 8 on air carriers of the laws and regulations at issue here, if 9 any, is too remote to be expressly preempted under the terms 10 of the Airline Deregulation Act. Accordingly, the district court's judgment of January 13, 2010 is hereby AFFIRMED.