AVIATION NOISE LAW
Miscellaneous Legal Documents


IN THE
Supreme Court of the United States


TOWN OF EAST HAMPTON,
Petitioner,
v.
FRIENDS OF THE EAST HAMPTON AIRPORT, INC., ET AL.,
Respondents.


On Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit


PETITION FOR A WRIT OF CERTIORARI


KATHLEEN M. SULLIVAN
Counsel of Record
DAVID M. COOPER
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
51 Madison Avenue 22nd Floor
New York, NY 10010
(212) 849-7000
kathleensullivan@
quinnemanuel.com
Counsel for Petitioner
March 6, 2017




TABLE OF CONTENTS

QUESTIONS PRESENTED ................................. i
INTRODUCTION ........................................ 1
OPINIONS BELOW ...................................... 2
JURISDICTION ........................................ 2
STATUTORY PROVISIONS INVOLVED ....................... 3
STATEMENT OF THE CASE ............................... 3

  A. The Town Of East Hampton And The
     East Hampton Airport ........................... 3

  B. The Aircraft Noise Problem In The Town ......... 5
 
  C. The Town’s Enactment Of Noise Restrictions ..... 6

  D. Proceedings In The District Court .............. 7

  E. The Court Of Appeals Decision .................. 8

REASONS FOR GRANTING THE WRIT ...................... 10

  I. THE DECISION BELOW CONFLICTS WITH ARMSTRONG
     BY GRANTING EQUITY JURISDICTION FOR PRIVATE
     INJUNCTION CLAIMS ............................. 12

     A. Just Like The Statute At Issue In Armstrong,
        ANCA Provides A Sole Remedy Of Withholding
        Funds ...................................... 13

     B. The Congressional Intent To Foreclose
        Private Injunctive Relief Here Is Even
        Clearer Than In Armstrong .................. 15

  II. THE COURT OF APPEALS’ HOLDING THAT ANCA
      PREEMPTS NOISE AND ACCESS RESTRICTIONS FOR 
      ALL AIRPORTS CONFLICTS WITH THE PLAIN LANGUAGE
      OF THE STATUTE ............................... 22

      A. The Text And Structure Of ANCA Establish 
         That There Is No Preemption Of Restrictions
         By Airport Proprietors That Do Not Receive
         Federal Funding ........................... 22

      B. The Federal Aviation Law Scheme 
         Establishes That There Is No Preemption 
         Here ...................................... 25

      C. The Legislative History Of ANCA Confirms
         That There Is No Preemption Here .......... 29

  III. THE COURT OF APPEALS’ DECISION TO FEDERALIZE
       ALL THE NATION’S AIRPORTS HAS ENORMOUS,
       HARMFUL CONSEQUENCES THAT WARRANT THIS 
       COURT’S REVIEW .............................. 30

CONCLUSION ......................................... 34

APPENDIX A – Second Circuit Opinion (Nov. 4, 
2016) ............................................. 1a

APPENDIX B – District Court Order Granting In
Part and Denying In Part Motion For Preliminary
Injunction ........................................ 43a

APPENDIX C – Relevant Statutory Provisions ........ 80a


QUESTIONS PRESENTED The Airport Noise and Capacity Act of 1990 (“ANCA”) sets forth certain conditions for the imposition of airport access restrictions, and states that the remedy for non-compliance is the ineligibility for federal funds and the inability to impose passenger facility charges. The questions presented are: 1. Does equity jurisdiction allow a private plaintiff to obtain an injunction for non-compliance with ANCA against an airport that does not receive federal funds or impose passenger facility charges? 2. Does ANCA preempt noise and access restrictions by all airports, including the many thousands of small airports nationwide that do not receive federal funds or impose passenger facility charges?


TABLE OF AUTHORITIES

Armstrong v. Exceptional Child Center, Inc.,
135 S. Ct. 1378 (2015).....................................8, 10, 13, 14, 15, 16, 20, 21, 24
Barnes v. Gorman,
536 U.S. 181 (2002) ...................................... 23
British Airways Bd. v. Port Authority of New York,
558 F.2d 75 (2d Cir. 1977) ............................... 11, 27
City of Burbank v. Lockheed Air Terminal Inc.,
411 U.S. 624 (1973) ...................................... 27
Comm. to Stop Airport Expansion v. Dep’t of Transp.,
No. 03-CV-2634 (E.D.N.Y.) ................................ 4
Frew v. Hawkins,
540 U.S. 431 (2004) ...................................... 25
Friends of the East Hampton Airport, Inc. v. FAA,
No. 15-CV-00441 (E.D.N.Y.) ............................... 8
Gonzales v. Oregon,
546 U.S. 243 (2006) ......................   ............. 34
Guardians Ass’n v. Civil Serv. Comm’n of N.Y.C.,
463 U.S. 582 (1983) ...................   ................ 23
Matsushita Elec. Indus. Co. v. Epstein,
516 U.S. 367 (1996) ...................................... 26
Nat’l Fed’n of Indep. Bus. v. Sebelius,
132 S. Ct. 2566 (2012) ................................... 23
Nat’l Helicopter Corp. of Am. v. City of New York,
952 F. Supp. 1011 (S.D.N.Y. 1997) ........................ 33
National Helicopter Corp. of America v. City of New York,
137 F.3d 81 (2d Cir. 1998) ............................... 9, 27, 33
Pennhurst State Sch. & Hosp. v. Halderman,
451 U.S. 1 (1981) ........................................ 23
Rosado v. Wyman,
397 U.S. 397 (1970) ...................................... 23
Schweiker v. Chilicky,
487 U.S. 412 (1988) ...................................... 20
Seminole Tribe of Fla. v. Florida,
517 U.S. 44 (1996) ....................................... 13, 20
Sturgeon v. Frost,
136 S. Ct. 1061 (2016) ................................... 24
United States v. Fausto,
484 U.S. 439 (1988) ...................................... 17, 20
Verizon Md., Inc. v. Public Serv. Comm’n of Md.,
535 U.S. 635 (2002) ...................................... 13
Virginia Office for Protection & Advocacy v. Stewart,
563 U.S. 247 (2011) ...................................... 21

28 U.S.C. § 1254(1) ....................................... 3
42 U.S.C. § 10805(a)(1)(B) ................................ 21
42 U.S.C. § 1396a(a) ...................................... 24
42 U.S.C. § 15043(a)(2)(A)(i) ............................. 21
49 U.S.C. § 41713(b) ...................................... 25
49 U.S.C. § 41713(b)(1) ................................... 8
49 U.S.C. § 41713(b)(3) ................................... 8, 11
49 U.S.C. § 47103 ......................................... 31
49 U.S.C. § 47107(a) ...................................... 4, 28
49 U.S.C. § 47521(1)-(4) .................................. 25
49 U.S.C. § 47521(6) ..................................... 25
49 U.S.C. § 47524
.......................................................... 9, 11, 16, 17, 18, 19, 22, 23, 24, 26, 31
49 U.S.C. § 47524(b) ..................................... 1, 17
49 U.S.C. § 47524(c) ..................................... 1, 17
49 U.S.C. § 47524(e) ..................................... 1, 11, 14, 17, 22
49 U.S.C. § 47526 ........................................ 1, 11, 15, 17, 22, 23
49 U.S.C. § 47531 ........................................ 18, 23
49 U.S.C. § 47532 ........................................ 18
49 U.S.C. § 47533 ........................................ 9, 10, 16, 17, 23
Pub. L. No. 85-726, §§ 308, 309 72 Stat.
731, 750-51 (1958) ....................................... 27, 28
14 C.F.R. § 36.1(f) ...................................... 9
14 C.F.R. § 161.305(e)(2)(ii)(A) ......................... 32
14 C.F.R. § 161.5 ........................................ 31
14 C.F.R. § 161.501(a) ................................... 17, 18
14 C.F.R. § 161.503 ...................................... 20
Town of E. Hampton Code §§ 75-38(B)-(C) .................. 6, 7

MISCELLANEOUS

136 Cong. Rec. E3693-04, E3694 (Oct. 27, 1990)............ 29
136 Cong. Rec. S15777-02, S15818 (Oct. 18, 1990) ......... 30
Brief of Respondent FAA, Helicopter Ass’n Int’l, Inc.
v. FAA, No. 12-1335 (D.C. Cir. Feb. 1, 2013) ............. 29
FAA, REPORT TO CONGRESS, NATIONAL PLAN OF INTEGRATED
AIRPORT SYSTEMS (NPIAS) 2017-2021, at 2 (Sept. 30, 2016)
(“FAA Report”), available at https://www.faa.gov/airports/
planning_capacity/npias/reports/media/NPIAS-Report-2017-2021-
Narrative.pdf ............................................ 31
FAA ORDER 5090.3C, FIELD FORMULATION OF THE NATIONAL
PLAN OF INTEGRATED AIRPORT SYSTEMS (NPIAS) § 1-5
(Dec. 4, 2000), available at https://www.faa.gov/
airports/resources/publications/orders/media/
planning_5090_3C.pdf ..................................... 28
Federal Aviation Noise Policy: Hearings Before the
Subcomm. On Aviation of the H. Comm. on Pub. Works &
Transp., 101st Cong., Summary of Subject Matter at 1
(1990) ................................................... 29, 30
Hollywood Burbank Airport, Part 161 Update, 
https://bobhopeairport.com/noiseissues/part-161-update ... 32 


[**PAGE 1**]

INTRODUCTION

The Town of East Hampton, as proprietor of the East Hampton Airport, enacted three laws—two curfews and a limit on the number of trips for certain aircraft—to address the noise problem from escalating use of its airport. The Second Circuit held that these laws were invalid as preempted by the Airport Noise and Capacity Act of 1990 (“ANCA”). ANCA lists procedures for airports to follow, including the need for FAA approval, when enacting certain access restrictions. See 49 U.S.C. § 47524(b), (c). ANCA states that, if an airport does not comply with these procedures, then it cannot receive federal funds or impose passenger facility charges. Id. §§ 47524(e), 47526. The Second Circuit held that, even though the Town of East Hampton (“Town”) does not receive federal funds or impose passenger facility charges in connection with the East Hampton Airport, it is still subject to ANCA, and that private plaintiffs can enforce ANCA through an injunction.

This decision has radically transformed aviation law in a manner that Congress did not intend and the FAA has rejected, with the result of placing extraordinary burdens on many thousands of small airports across the country even if they take no federal funds. Large airports with scheduled commercial service all receive federal funding and all are highly regulated by the FAA. But the vast majority of airports — 14,400 private airports (i.e., airports not open to the public) and 1,800 public airports — do not receive federal funds and are not so regulated. ANCA makes no distinction between private and public airports, and in the 26 years since ANCA was enacted, none of these airports has ever submitted a restriction for FAA approval, nor has the FAA suggested they should do so. And when [**PAGE 2**] the congressman for the district encompassing the Town asked the FAA if the Town would violate ANCA by enacting regulations to combat aircraft noise, the FAA gave assurances that it would not. The Second Circuit’s decision defies this consistent practice, instead subjecting every tiny airstrip across the country to a years-long and very costly process to enact something as a simple as a curfew.

There is nothing in the text of ANCA that suggests that Congress intended to federalize every airport in the nation, preempting the traditional exercise of their proprietary powers even if they take no federal funds. Rather, ANCA’s plain text makes withholding of funds the sole remedy for non-compliance, consistent with decades of aviation law that recognized federal funding as the basis for FAA oversight of airports. The Second Circuit’s decision warrants this Court’s review both because it creates a private claim for injunctive relief and because it applies ANCA preemption against all airports, regardless of whether they receive federal funds.


OPINIONS BELOW

The opinion of the U.S. Court of Appeals for the Second Circuit is reported at 841 F.3d 133 and reproduced at App. 1a-42a. The opinion of the U.S. District Court for the Eastern District of New York is reported at 152 F. Supp. 3d 90 and reproduced at App. 43a-79a.


JURISDICTION

The court of appeals issued its opinion on November 4, 2016. On January 6, 2017, Justice Ginsburg extended the time for filing a petition for a writ of [**PAGE 3**] certiorari to March 6, 2017. This Court has jurisdiction under 28 U.S.C. § 1254(1).


STATUTORY PROVISIONS INVOLVED

The relevant provisions of ANCA, 49 U.S.C. §§ 47521 et seq., are reproduced at App. 80a-86a.


STATEMENT OF THE CASE

A. The Town Of East Hampton And The East Hampton Airport

The Town of East Hampton is the easternmost town on Long Island, approximately 100 miles east of New York City. A290 ¶ 3. [FN 1] The Town’s year-round population is approximately 21,000, but that number almost quadruples during the summer busy season. A291 ¶ 4. The tranquility and natural beauty of the Town are critical to its economy and also to the quality of life of its residents. A292 ¶ 7.

[FN 1] Citations in the form A__ refer to the joint appendix before the Second Circuit.

The Town owns and operates the East Hampton Airport (“Airport”). A291 ¶ 5. The Airport, unlike major New York airports like JFK and LaGuardia, offers no scheduled commercial service. Id. Rather, it serves a range of private recreational, personal, and corporate aircraft operations, as well as charter operations by fixed-wing aircraft and helicopters. A31 ¶ 57.

From 1983 to 2001, the Town received several federal grants for airport development under the Airport Improvement Program (“AIP”), pursuant to the Airport and Airway Improvement Act of 1982 (“AAIA”). A32 ¶ 61. The FAA has not awarded the Town an AIP grant since 2001. A32 ¶ 62. Under the [**PAGE 4**] AAIA, the FAA may approve a grant application only if the airport proprietor agrees to certain written assurances (i.e., grant assurances) regarding airport operations. 49 U.S.C. § 47107(a). Grant Assurance 22(a) requires that an airport be available “for public use on reasonable terms and without unjust discrimination.” A61.

In 2003, the Committee to Stop Airport Expansion (the “Committee”), an unincorporated association of residents living near the Airport, commenced several legal proceedings in an attempt to halt development of the Airport. See Comm. to Stop Airport Expansion v. Dep’t of Transp., No. 03-CV-2634 (E.D.N.Y.). In 2005, the Committee and the United States executed a settlement agreement, in which the FAA agreed that, with respect to the Airport, Grant Assurance 22(a) “[would] not be enforced [by the FAA] beyond December 31, 2014.” A407 ¶ 7.

In December 2011, then-U.S. Representative Timothy Bishop, whose district included the Town, submitted questions to the FAA concerning the Town’s ability to enact noise and access regulations at the Airport. A397-98. The FAA responded by stating that, in light of the 2005 settlement agreement, the FAA would not, as of December 31, 2014, “initiate or commence an administrative grant enforcement proceeding in response to a complaint from aircraft operators ... or seek specific performance of Grant Assurance[] 22a” unless the FAA awarded a new AIP grant to the Town. A391 (“Bishop Responses”). The FAA also stated that “[t]he FAA’s agreement not to enforce also mean[t] that unless the town wishe[d] to remain eligible to receive future grants of Federal funding, it [was] not required to comply with [ANCA] ... in proposing new airport noise and access restrictions.” A391. [**PAGE 5**]


B. The Aircraft Noise Problem In The Town

For over a decade, the residents of the Town have expressed concern about the noise from aviation operations at the Airport. A292 ¶ 8. The Town attempted to address the noise problem through voluntary procedures. A302; A333 ¶ 27. But in the few years prior to this suit, noise from aircraft flying to and from the Airport increased dramatically. A292 ¶ 8. Helicopter operations (i.e., landings and take-offs) increased by 47% from 2013 to 2014. A357 ¶ 8.

The increase in aircraft noise sparked an enormous response from the community. A333 ¶ 28. The Town received thousands of complaints by email, phone, testimony at Town Board meetings, and letters to local papers. A292-93 ¶ 9. The Town employed a system for residents to log complaints, and the result was 23,954 complaints filed by 633 separate households. See Ted Baldwin & Katie van Heuven, East Hampton Airport Phase II Noise Analysis, http://ehamptonny. gov/documentcenter/view/1624 (referenced at A308). The increase is also an economic concern, as real estate agents recognize that aircraft noise caused by use of the Airport is a “critical consideration” for people purchasing or renting property in the Town. A381-82 ¶¶ 6-7. In short, aircraft noise threatens the tranquility and rural quiet that are the foundation for the economy and quality of life in the Town. A298 ¶ 29.

Recognizing the escalating problem, the Town engaged in a detailed analysis and extensive, public debate for over a year to find a solution. A293 ¶ 13; A305-06. The Town also engaged noise experts to conduct a series of increasingly refined studies on the noise problem. A305; A308; A340. Those studies concluded that noise from operations at the Airport [**PAGE 6**] disturbs many residents of the East End of Long Island, that helicopters created a greater disturbance than other aircraft, and that frequent and night operations caused the greatest disturbance. A308.

The Town considered numerous options to address the problem. A309-12. It then commissioned a study of proposed restrictions, which found that, if curfews and a seasonal, one-trip-per-week limit for aircraft classified as “noisy” (based on their high decibel level) had been in place during the prior year, “they would have affected under 23% of total operations, while addressing the cause of over 60% of the complaints.” A325 ¶ 11. Over several months, the Town conducted a series of meetings with residents and businesses about the proposals, along with public hearings. A312- 16; A333-34 ¶ 29. The Town also met with senior FAA officials, members of the New York congressional delegation, and several industry groups. A318-19. Concerned that a helicopter ban simply would divert helicopters to Montauk, the easternmost part of the township, the Town deferred consideration of a seasonal weekend ban on helicopters. A319. The Town also determined that, even without a helicopter ban, the other three proposed laws would provide meaningful relief from noise. A297 ¶ 24; A319-20.


C. The Town’s Enactment Of Noise Restrictions

On April 16, 2015, the Town passed the Local Laws denominated as Sections 75-38 and 75-39 of the Town of East Hampton Code. See Town of E. Hampton Res. 2015-411, 2015-412, 2015-413. The access restrictions are as follows: (1) a mandatory curfew prohibiting all aircraft from using the Airport between 11:00 p.m. and 7:00 a.m.; (2) an extended curfew prohibiting “Noisy Aircraft” from using the Airport from 8:00 p.m. to [**PAGE 7**] 9:00 a.m.; and (3) a weekly limit prohibiting “Noisy Aircraft” from using the Airport (i.e., taking off or landing) more than two times per week during the “Season,” which is from May to September (the “One- Trip Limit”). Town of E. Hampton Code §§ 75-38(B)- (C).

The Town determined that, while these three restrictions would not resolve all complaints, they struck a reasonable balance and would provide meaningful relief. A320. The Town would also revisit its decision after learning the effects of the Local Laws after they are in place for a season. A320.


D. Proceedings In The District Court

On April 21, 2015, Plaintiffs brought suit against the Town. Plaintiffs alleged that the three Local Laws are preempted by the AAIA and ANCA, and that they are preempted by federal law because they are unreasonable. A47-48 ¶¶ 104-15. Plaintiffs abandoned their AAIA claim on appeal.

On June 26, 2015, the district court issued an order granting in part and denying in part Plaintiffs’ motion for a temporary restraining order, which the court treated as a motion for a preliminary injunction. App. 55a. Specifically, the court granted the preliminary injunction as to the One-Trip Limit and denied the preliminary injunction as to the two curfews. App. 79a.

The court ruled (App. 59a, 65a) that ANCA does not create a private right of action but that Plaintiffs may be able to invoke the court’s equity jurisdiction to enjoin the allegedly preempted regulations. Nonetheless, the court held (App. 70a-72a) that ANCA does not preempt the Local Laws because ANCA does not displace the “proprietor exception.” This exception to [**PAGE 8**] preemption is codified in the Airline Deregulation Act, which states that laws “related to a price, route, or service of an air carrier” are preempted, but that this “does not limit a State, political subdivision of a State, or political authority of at least 2 States that owns or operates an airport ... from carrying out its proprietary powers and rights.” 49 U.S.C. § 41713(b)(1), (3). The court recognized (App. 73a-78a) that the proprietor exception requires the Local Laws to be reasonable and ruled that, based on the evidence, the curfews satisfy this test, but the One-Trip Limit does not. [FN 2]

[FN 2] In January 2015, many of Plaintiffs in this case filed a separate action against the FAA, alleging that the FAA has a statutory obligation to enforce Grant Assurance 22(a), and that the FAA’s position on ANCA is erroneous. See Friends of the East Hampton Airport, Inc. v. FAA, No. 15-CV-00441 (E.D.N.Y.). That action was stayed pending the outcome of this case.


E. The Court Of Appeals Decision

The U.S. Court of Appeals for the Second Circuit affirmed in part and vacated in part the district court’s decision, holding that all three Local Laws were preempted by ANCA.

First, the court held that equity jurisdiction allowed Plaintiffs to bring a claim for injunctive relief for violations of ANCA. App. 18a-25a. [FN 3] The court acknowledged

[FN 3] The court noted that Plaintiffs abandoned on appeal any argument that they had a private right of action under ANCA or the Supremacy Clause. App. 15a n.9.


that there was no equity jurisdiction in Armstrong v. Exceptional Child Center, Inc., 135 S. Ct. 1378 (2015), because withholding of federal funds was the sole remedy and the statute was not judicially administrable. App. 21a. The court held that neither of those factors was met here because 49 U.S.C. [**PAGE 9**] § 47533 allows the FAA to seek injunctive relief and ANCA is judicially administrable. App. 21a-25a.

Second, the court held that ANCA preempts the Local Laws. The court noted that the statute allowed restrictions “only if” the ANCA requirements were satisfied. App. 26a-27a (quoting 49 U.S.C. § 47524). It concluded that “[t]he phrase ‘only if’ is unambiguously limiting,” and thus “the plain statutory text is fairly read to mandate the identified procedural requirements for local noise and access restrictions on Stage 2 and 3 aircraft at any public airport.” App. 27a- 28a. [FN 4] The court further held that its interpretation

[FN 4] “Stage 2” and “Stage 3” aircraft are defined in FAA regulations by the noise output of the aircraft. 14 C.F.R. § 36.1(f).

was supported by the statutory findings, legislative history, and FAA regulations. App. 30a-34a.

Third, the court recognized that its prior decision in National Helicopter Corp. of America v. City of New York, 137 F.3d 81 (2d Cir. 1998), had upheld local regulations enacted without compliance with ANCA. App. 35a-37a. But the court held that case was not binding precedent because it did not explicitly address the preemptive scope of ANCA. App. 37a.

Fourth, the court held that its opinion does not transform federal aviation law. App. 39a-41a. The court noted that the fact that only one airport proprietor had ever applied for FAA approval of proposed noise restrictions did not mean that others could not do so or that the agency would arbitrarily withhold consent. App. 40a.


[**PAGE 10**]

REASONS FOR GRANTING THE WRIT

This Court should grant certiorari to address the court of appeals’ decision to allow a private injunctive claim under equity jurisdiction and its decision that ANCA preempts the access restrictions of all airports.

I. The court of appeals’ holding that equity jurisdiction allowed a private plaintiff’s claim for an injunction to enforce ANCA conflicts with this Court’s decision in Armstrong. Here, as in Armstrong, the statute provides only a remedy of withdrawal of funding for non-compliance with the statute. This sole remedy provision provides a strong indication of congressional intent to disallow injunctive relief.

Furthermore, the congressional intent to deny injunctive relief is even clearer than in Armstrong. First, rather than allowing an injunction as an additional remedy to withdrawal of funds, the court of appeals allowed an injunction here against a municipality that does not receive federal aviation funding at all. The injunctive remedy therefore effectively turns a spending statute into a statute that requires compliance regardless of the acceptance of federal funds. This Court has never countenanced the use of equity jurisdiction to expand spending statutes in this manner, and the court of appeals’ approach has significant consequences for the interpretation of Spending Clause legislation.

Second, ANCA states that the FAA can obtain injunctions “[e]xcept as provided by section 47524,” the section relevant here. 49 U.S.C. § 47533. This provision makes clear that the FAA could not obtain an injunction here, and a fortiori neither can private plaintiffs. Moreover, even if the FAA could obtain an injunction under section 47533, the express provision [**PAGE 11**] for an injunction for the FAA would imply that injunctions are not available for private plaintiffs, who are not mentioned in ANCA.

Third, an injunctive remedy for ANCA would make the express funding remedy completely superfluous. Under the court of appeals’ approach, there is no reason to have withdrawal of federal funding as a remedy because the restriction should be enjoined as preempted in the first place.

II. The court of appeals’ holding that the preemptive scope of ANCA covers restrictions at all airports, whether or not they take federal funds, conflicts with the plain text of ANCA and would create an enormous, detrimental change in aviation law. The text of ANCA establishes that section 47524 has no preemptive scope beyond airports that receive federal aviation grants or impose passenger facility charges because withdrawal of those funds is the only remedy for noncompliance. 49 U.S.C. §§ 47524(e), 47526. Moreover, aviation law prior to ANCA expressly provides an exception to preemption for an airport exercising its proprietary authority. 49 U.S.C. § 41713(b)(3); see also British Airways Bd. v. Port Authority of New York, 558 F.2d 75, 83 (2d Cir. 1977). There is nothing in ANCA about preemption and no suggestion of an intent to displace the express preemption provision already well established in aviation law. There is also no suggestion that Congress intended to have the FAA regulate non-federally funded airports after refusing to do so in numerous statutes over the course of decades. Indeed, even the FAA has not taken this position, instead stating in the Bishop Responses that the Town would not be subject to ANCA unless it sought federal funding—assurances on which the Town relied.

[**PAGE 12**] Moreover, the effect of the court of appeals’ ruling will be enormous. Prior to this ruling, for the 26-plus years ANCA has been in effect, both the nation’s airports and the FAA have operated on the understanding that ANCA does not apply unless the airport seeks federal funds. But now, under the decision below, the thousands of airports nationwide that do not receive federal funds will be unable to undertake even minor restrictions, like curfews, without going through a lengthy and burdensome regulatory process under ANCA, subject to FAA scrutiny. And the cost of such effort would be enormous, requiring expensive and time-consuming studies of cost-benefit analysis— so difficult to complete that in fact no airport has ever received FAA approval for a restriction on Stage 3 aircraft. This radical change in aviation law, contrary to the statute and the FAA’s interpretation provided to the Town, provides a strong basis for a grant of certiorari.


I. THE DECISION BELOW CONFLICTS WITH ARMSTRONG BY GRANTING EQUITY JURISDICTION FOR PRIVATE INJUNCTION CLAIMS

There is no dispute that Plaintiffs lack a statutory right of action or a right of action under the Supremacy Clause to enforce ANCA. App. 15a & n.9. The court of appeals held that Plaintiffs could pursue an injunction in federal court nonetheless under equity jurisdiction. This holding conflicts with Armstrong and erroneously expands the scope of funding legislation.


[**PAGE 13**]

A. Just Like The Statute At Issue In Armstrong, ANCA Provides A Sole Remedy Of Withholding Funds

1. Armstrong recognized that “[t]he ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity.” 135 S. Ct. at 1384. But this authority is limited: “The power of federal courts of equity to enjoin unlawful executive action is subject to express and implied statutory limitations.” Id. at 1385. Thus, to determine whether equitable relief is available in connection with a federal statutory scheme, courts look to “Congress’s ‘intent to foreclose’ equitable relief.” Id. (quoting Verizon Md., Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635, 647 (2002)).

Applying this test of “express” or “implied” “intent to foreclose,” this Court held that the Medicaid Act implicitly precluded enforcement of the relevant provision. In Armstrong, “the sole remedy Congress provided for a State’s failure to comply with Medicaid’s requirements — for the State’s ‘breach’ of the Spending Clause contract — is the withholding of Medicaid funds by the Secretary of Health and Human Services.” Id. Armstrong held that Congress’s listing only the remedy of withholding federal funds was a very strong indication of an intent to foreclose injunctive relief, stating that “the ‘express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.’” Id. (quoting Alexander v. Sandoval, 532 U.S. 275, 290 (2001)); see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 74 (1996).

This Court did not decide whether this fact alone would suffice to preclude equity jurisdiction. It stated: “The provision for the Secretary’s enforcement by [**PAGE 14**] withholding funds might not, by itself, preclude the availability of equitable relief.” Armstrong, 135 S. Ct. at 1385. No decision was necessary on whether it might suffice by itself because “the judicially unadministrable nature of [the statute’s] text” also suggested an intent to preclude a private right of action. Id.

2. Just like the Medicaid provision at issue in Armstrong, ANCA provides a specific, limited form of relief for the agency. In two provisions, the statute makes clear that there is a particular monetary remedy — ineligibility for a federal grant and inability to impose a passenger surcharge — for non-compliance with ANCA’s conditions:

(e) [A] sponsor of a facility operating under an airport noise or access restriction on the operation of stage 3 aircraft ... is eligible for a grant under section 47104 of this title and is eligible to impose a passenger facility charge under section 40117 of this title only if the restriction has been —

(1) agreed to by the airport proprietor and aircraft operators;

(2) approved by the Secretary as required by subsection (c)(1) of this section; or

(3) rescinded.

49 U.S.C. § 47524(e). Limitations for noncomplying airport noise and access restrictions. Unless the Secretary of Transportation is satisfied that an airport is not imposing an airport noise or access restriction not in [**PAGE 15**] compliance with this subchapter, the airport may not —

(1) receive money under subchapter I of chapter 471 of this title; or

(2) impose a passenger facility charge under section 40117 of this title.

Id. § 47526. In short, just as in Armstrong, the statute here makes clear that “[u]nless” the airport complies, it loses certain funding. Id.


B. The Congressional Intent To Foreclose Private Injunctive Relief Here Is Even Clearer Than In Armstrong

Not only does the existence of a sole remedy of withholding federal funds mirror Armstrong, but in other respects the congressional intent to foreclose injunctive relief here is substantially stronger than in Armstrong.

First, the court of appeals held that an injunction would be available even against a municipality that does not receive federal funding for its proprietary airport. The injunction would therefore function not as a remedy in addition to an explicit statutory remedy of withholding funds, but rather as the sole and entirely implicit remedy. In Armstrong, in contrast, the state received federal funding and the only question was whether the remedy of injunction could be allowed in addition to the withholding of funds. The analogous situation in Armstrong, therefore, would be if an injunction were allowed even against a state that did not choose to take federal funds. That would constitute a dramatic expansion of the Medicaid statute. Here, as discussed infra at 25-28, it constitutes a dramatic expansion of federal aviation law — not [**PAGE 16**] merely providing an additional remedy, but rather establishing a remedy where none exists in the statute. Thus, the decision below goes far beyond even the dissenting opinion in Armstrong by holding that an injunction is a permissible remedy when there is a funding remedy and the state or local government has foregone the receipt of federal funds.

This extreme position would undermine the basic principle that, for Spending Clause legislation, the state or municipality has a choice of whether to accept the funds and to thereby face restrictions. In short, even assuming that the creation of a funding remedy in a spending statute does not always demonstrate an intent to preclude an additional remedy of injunction, it at least demonstrates a clear intent not to allow private injunctions against those that do not receive the funding. Petitioners are aware of no case ever holding the contrary, and such a novel idea should not be imputed to Congress given the absence of any statutory basis for it.

Second, ANCA states expressly that other possible consequences, including injunctive relief, apply only to other substantive provisions of ANCA not at issue here. In particular, section 47533 states:

Except as provided by section 47524 of this title, this subchapter does not affect — ...

(3) the authority of the Secretary of Transportation to seek and obtain legal remedies the Secretary considers appropriate, includeing injunctive relief.

49 U.S.C. § 47533 (emphasis added). Congress would not have “except[ed]” section 47524 from section 47533 if it wanted the injunctive remedy permitted by section 47533 to be created as an equitable right by the courts [**PAGE 17**] to enforce section 47524. Indeed, this Court has held that this kind of deliberate exclusion suffices to show congressional intent to foreclose an additional remedy. See United States v. Fausto, 484 U.S. 439, 455 (1988). And since Congress did not intend the FAA to have an injunctive remedy for non-compliance with section 47524, Congress plainly did not intend that private plaintiffs have this remedy.

The court of appeals held that section 47533 supported equity jurisdiction here, but its analysis has no statutory basis. The court stated that the “[e]xcept as provided” language is irrelevant because “§ 47524 provides only limited exceptions to the Secretary’s authority to bring suit: as against local Stage 2 aircraft restrictions if the airport proprietor complies with § 47524(b)’s notice-and-comment process; and as against local Stage 3 and 4 aircraft restrictions ‘agreed to by the airport proprietor and all aircraft operators’ or approved by the FAA, id. § 47524(c).” App. 22a (footnote omitted). The problem with this analysis is that section 47524 says nothing at all about the FAA’s “authority to bring suit.” Rather, it provides the procedure for Stage 2 and Stage 3 restrictions, 49 U.S.C. § 47524(b), (c), and then it says (along with section 47526) that withholding funds is the remedy, id. §§ 47524(e), 47526.

The FAA has never stated that injunctions are available for a violation of ANCA and never attempted to impose such an injunction in the 26-plus years since ANCA was enacted. [FN 5] It is, at a minimum, questionable

[FN 5] The court of appeals mentioned (App. 34a) a regulatory provision, which states that funding restrictions “may be used with or in addition to any judicial proceedings initiated by the FAA to protect the national aviation system and related Federal interests.” 14 C.F.R. § 161.501(a). But the possibility of relief for the FAA only “to protect the national aviation system and related Federal interests” does not remotely suggest that non-compliance with the specific requirements of section 47524 is subject to judicial proceedings for injunctive relief.


[**PAGE 18**] for a court to enlarge the scope of agency authority far beyond what the agency itself has purported to assume.

The denial of a private action for injunctive relief is further supported by the fact that Congress provided greater remedies for other sections of ANCA than for section 47524. For instance, it provided civil penalties for violations of sections 47528, 47529, 47530, or 47534, but not for non-compliance with section 47524. See 49 U.S.C. § 47531. Furthermore, the provision allowing for judicial review of FAA decisions under ANCA explicitly excludes section 47524 from its coverage. Id. § 47532. There is no logical basis for Congress to disallow judicial review for FAA actions taken under section 47524 while simultaneously allowing private plaintiffs to circumvent the FAA entirely by going directly to court under equity jurisdiction. The court of appeals ignored these provisions entirely.

Moreover, even if injunctions were available to the FAA, that would not show Congress’s intent to make them available for private parties. Rather, the specific provision of injunctive relief for the FAA (even assuming such injunctions would apply to violations of section 47524) suggests Congress did not intend injunctions for anyone other than the FAA. Indeed, the FAA deems injunctions available only to “protect the national aviation system and related Federal interests,” 14 C.F.R. § 161.501(a), and Plaintiffs here have made no showing that, by seeking to land noisy aircraft at a [**PAGE 19**] town airport in violation of local noise curfews, they are engaging in such protection of federal interests.

The court of appeals offered only one unexplained sentence as its reason for assuming that injunctions for the FAA support injunctions for private parties: “The fact that Congress conferred such broad enforcement authority on the FAA, and not on private parties, does not imply its intent to bar such parties from invoking federal jurisdiction where, as here, they do so not to enforce the federal law themselves, but to preclude a municipal entity from subjecting them to local laws enacted in violation of federal requirements.” App. 23a. However, it is unclear why not enforcing federal law gives private plaintiffs a stronger claim to injunctive relief. And there is no reason to believe that Congress sought to protect private injunctions by saying nothing about them at all, while expressly saying when FAA injunctions were available.

Third, it would make no sense to allow for injunctive relief while providing for the lesser remedy of withholding federal funds. According to the court below, an airport restriction is void as preempted by ANCA if the airport does not comply with section 47524. But if so, then there is no reason why Congress would grant the FAA the remedy of withholding federal funds until the restriction is rescinded. Congress would then be suggesting that the FAA should allow an unlawful restriction to remain in place, and rather than simply compel its rescission, merely withhold federal money. Such an illogical construction of a statute should be avoided. [FN 6]

[FN 6] The court of appeals posited that the withholding of funds was insufficient because a municipality could take the funds one day and then violate ANCA the next. App. 23a. This theory misunderstands the reality of airport grants. Grant assurances (allowing FAA oversight) typically last for twenty years after an airport receives federal funds, see, e.g., A30 ¶ 53, and those assurances would provide an independent basis for FAA to enjoin unreasonable access restrictions.


[**PAGE 20**] In Armstrong, there was a reasonable argument for allowing injunctive relief in addition to the withholding of federal funds: without private injunctive claims, “it must suffice that a federal agency, with many programs to oversee, has authority to address such violations through the drastic and often counterproductive measure of withholding the funds that pay for such services.” 135 S. Ct. at 1396 (Sotomayor, J., dissenting). Here, in contrast, not even that argument is available. There is no ground to suppose that the FAA would be unaware of relevant restrictions, and indeed third parties can file complaints of ANCA violations to the FAA. 14 C.F.R. § 161.503. Also unlike in Armstrong, the withholding of funds would not punish third-party recipients (as in Medicaid), but the airports themselves.

Finally, the court of appeals held that ANCA was distinguishable from the statute in Armstrong largely because it deemed the requirements of ANCA judicially administrable. App. 24a-25a. However, Armstrong never suggested that lack of administrability is a requirement for precluding a private injunction claim. Rather, that was simply a part of the basis for showing congressional intent to preclude such a claim. See Armstrong, 135 S. Ct. at 1385-87. And other cases have found preclusion of additional remedies without a finding of lack of administrability. See, e.g., Seminole Tribe, 517 U.S. at 74-76; Schweiker v. Chilicky, 487 U.S. 412, 423 (1988); Fausto, 484 U.S. at 455. The [**PAGE 21**] indirect and inferential showing of congressional intent based on administrability is substantially weaker than the showing here, based on express language and the need to make logical sense of the statute as a whole.

At a minimum, even discounting all of the statutory indications of intent to foreclose private injunctive claims discussed above, this case raises the question left open in Armstrong: whether a provision specifying solely withholding of federal funds as the remedy for a violation, by itself, shows Congress’s intent to preclude private injunctive relief. This is an important question that this Court should resolve, and it should answer the question in the affirmative. In noting that such a provision by itself “might not” suffice to disallow equity jurisdiction, Armstrong, 135 S. Ct. at 1385, this Court cited Virginia Office for Protection & Advocacy v. Stewart, 563 U.S. 247 (2011) (“VOPA”). But in VOPA, the plaintiffs conceded that the injunction could have been granted to a private plaintiff; the question was simply whether it mattered that the plaintiff there was a state agency. 563 U.S. at 255-56. Moreover, the statute at issue there, unlike here, expressly authorized the plaintiff to “pursue administrative, legal, and other appropriate remedies.” 42 U.S.C. §§ 10805(a)(1)(B), 15043(a)(2)(A)(i). Thus, this Court has not held that private injunctions through equity jurisdiction are available when Congress has set forth a different remedy in the statute. And any new principle of law of this kind — imputing to Congress an intent to allow remedies beyond those stated in a statute—should be considered by this Court.


[**PAGE 22**]

II. THE COURT OF APPEALS’ HOLDING THAT ANCA PREEMPTS NOISE AND ACCESS RESTRICTIONS FOR ALL AIRPORTS CONFLICTS WITH THE PLAIN LANGUAGE OF THE STATUTE

Even if Plaintiffs have a right of action under equity jurisdiction, this Court should grant review to consider the court of appeals’ holding that noise restrictions like the Local Laws are preempted under ANCA.


A. The Text And Structure Of ANCA Establish That There Is No Preemption Of Restrictions By Airport Proprietors That Do Not Receive Federal Funding

The text and structure of ANCA show that section 47524 has no preemptive scope beyond airports that wish to continue to receive federal aviation grants and to impose passenger facility charges. ANCA is structured to give airports a choice: enact noise regulations with FAA approval or forego certain funding. That is why the only remedy for non-compliance with section 47524 is the ineligibility for funding. See 49 U.S.C. §§ 47524(e), 47526.

The court of appeals nonetheless stated (App. 29a) that “§ 47526 provides for loss of funding eligibility as a consequence of noncompliance with § 47524 procedures,” ignoring that the text lists such monetary remedies as the consequence, not merely one consequence, of noncompliance. In particular, section 47524(e) makes clear that the procedures in section 47524 are conditions of “eligib[ility],” not requirements. See 49 U.S.C. § 47524(e). And section 47526, entitled “Limitations for noncomplying airport noise and access restrictions,” states that an airport “may not” receive funding “[u]nless” it complies with the conditions of [**PAGE 23**] section 47524. Id. § 47526. These terms—eligible, may not, limitations, and unless—are not terms that are ordinarily associated with requirements. Rather, they are used to denote conditions that must be followed if, and only if, a certain benefit is to be attained.

The provision of limited monetary remedies—and the deliberate exclusion of section 47524 when the statute provides for civil penalties and injunctions, see 49 U.S.C. §§ 47531, 47533, discussed supra at 16- 18—establishes Congress’s intent to follow the wellrecognized approach in Spending Clause legislation. That approach ensures that recipients always retain the option of foregoing federal funds and thus avoiding any regulatory conditions attached to accepting such funds. As this Court has explained, “[w]e have repeatedly characterized ... Spending Clause legislation as ‘much in the nature of a contract.’” Barnes v. Gorman, 536 U.S. 181, 186 (2002) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)). In particular, “the Court has more than once announced that in fashioning remedies for violations of Spending Clause statutes by recipients of federal funds, the courts must recognize that the recipient has ‘alternative choices of assuming the additional costs’ of complying with what a court has announced is necessary to conform to federal law or ‘of not using federal funds’ and withdrawing from the federal program entirely.” Guardians Ass’n v. Civil Serv. Comm’n of N.Y.C., 463 U.S. 582, 596 (1983) (opinion of White, J.)) (quoting Rosado v. Wyman, 397 U.S. 397, 420-21 (1970)). “Respecting this limitation is critical to ensuring that Spending Clause legislation does not undermine the status of the States as independent sovereigns in our federal system.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2602 (2012) [**PAGE 24**] (opinion of Roberts, C.J., joined by Breyer and Kagan, JJ.).

The court of appeals held that the words “only if” in the description of the section 47524 procedures indicate that the procedures are mandatory. App. 27a. But “[s]tatutory language cannot be construed in a vacuum. It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Sturgeon v. Frost, 136 S. Ct. 1061, 1070 (2016) (internal quotation marks omitted). Thus, the “only if” language must be read together with the remedy provisions immediately thereafter. Read together, the provisions of the statute evince congressional intent to allow an airport not to comply if it foregoes funding.

Congress has followed this approach — mandatory sounding language in one section with only a funding remedy in another — in other Spending Clause legislation where it is clearly intended that the supposed requirement is conditional on acceptance of federal funds. For instance, the sections of the Medicaid Act at issue in Armstrong are structured and worded just like the ANCA provisions at issue here. The Medicaid Act provides that states “must” conform to certain federal requirements. See 42 U.S.C. § 1396a(a) (“A State plan for medical assistance must....”). And there is a remedy of withholding federal funds for noncompliance with those requirements. See id. § 1396c. Congress did not see any need to expressly state that the requirements for state plans did not apply if the state chose to forego funding. Yet courts have repeatedly held that Medicaid is voluntary and that states can choose to forego federal funding and exempt themselves from the Medicaid requirements that [**PAGE 25**] apply to those that do accept federal funds. See, e.g., Frew v. Hawkins, 540 U.S. 431, 433 (2004).

Furthermore, this interpretation is confirmed by the express findings Congress made in ANCA. In particular, Congress stated that “revenues controlled by the United States Government can help resolve noise problems and carry with them a responsibility to the national airport system.” 49 U.S.C. § 47521(6). The court of appeals asserted that “Congress can certainly regulate commerce both by providing monetary incentives for voluntary compliance by some actors, while at the same time allowing for enforcement actions more generally.” App. 31a. To be sure, Congress can do so, but the court of appeals failed to explain why it would make sense to treat federal funds as helping to resolve the problem if any regulation that did not comply with ANCA would be void as preempted anyway. [FN 7]

[FN 7] The court of appeals mentioned (App. 31a) that other findings note the “national interest” and the prevention of “inconsistent restrictions.” 49 U.S.C. § 47521(1)-(4). But these findings do not indicate which airports are being targeted, and certainly the coverage of airports that receive federal funding — which includes all major airports across the country with scheduled, commercial service — would qualify as a national set of restrictions.


B. The Federal Aviation Law Scheme Establishes That There Is No Preemption Here

The background of federal aviation law against which ANCA was passed also establishes that there is no preemption under ANCA here.

First, the Airline Deregulation Act of 1978 (“ADA”) expressly deals with preemption, in a section entitled “Preemption.” 49 U.S.C. § 41713(b). That section establishes that a state or local government cannot [**PAGE 26**] enact any regulation “related to a price, route, or service of an air carrier,” but that this preemption does not apply to a state or local government that owns or operates an airport when “carrying out its proprietary powers and rights.” Id.

In contrast to the ADA, ANCA does not mention preemption at all. Accordingly, there is nothing in ANCA to suggest that Congress intended to dramatically change the scope of preemption established in the ADA by invalidating the ADA’s “proprietor exception.” What the court of appeals has created, in effect, is a repeal by implication of the express preemption provision of the ADA. Such a repeal is disfavored and should not be found where, as here, the statutes can easily be reconciled. See Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 381 (1996). The court of appeals suggested (App. 38a) that there is no implied repeal because ANCA merely defines what is unreasonable and therefore what does not fall within the proprietor exception. But there is nothing in ANCA to suggest that any regulation that does not comply with section 47524 is, by definition, unreasonable. And it is implausible that a particular procedure and FAA approval are required to make a regulation reasonable, given that the proprietor exception is supposed to preserve local authority. Indeed, the enormous time, expense, and uncertainty in attempting to satisfy the section 47524 conditions for Stage 3 aircraft — which no airport has ever satisfied — show that this is far more than a simple reasonableness requirement.

Second, the court of appeals’ ruling improperly expands the scope of preemption into an area of traditional state and local authority. The proprietor exception reflects the traditional role of state and local government airport owners that had been understood [**PAGE 27**] for decades even before the passage of the ADA. See Nat’l Helicopter, 137 F.3d at 88-89 (explaining the history of the proprietor exception). [FN 8] As the Second

[FN 8] This Court recognized the support for such an exception in City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624 (1973), noting that for a prior statute, the Secretary of Transportation had stated (in language quoted with approval in the Senate Report): “[T]he proposed legislation will not affect the rights of a State or local public agency, as the proprietor of an airport, from issuing regulations or establishing requirements as to the permissible level of noise which can be created by aircraft using the airport. Airport owners acting as proprietors can presently deny the use of their airports to aircraft on the basis of noise considerations so long as such exclusion is nondiscriminatory.” Id. at 635-36 n.14 (emphasis added in opinion; quotation marks omitted). Because City of Burbank considered only police powers, this Court held that “[w]e do not consider here what limits, if any, apply to a municipality as a proprietor.” Id.

Circuit itself recognized long before the decision below, “[t]he regulation of excessive aircraft noise has traditionally been a cooperative enterprise, in which both federal authorities and local airport proprietors play an important part.” British Airways, 558 F.2d at 83. And “Congress repeatedly has declined to alter this cooperative scheme.” Id. Indeed, it was expressly adopted in the ADA.

Third, not only would the court of appeals’ interpretation depart from the long-established proprietor exception, but it would also depart from the longestablished approach of using federal funds as the means to encourage airport compliance. The principle that the FAA would regulate airports that use federal funding, rather than regulate all airports, has been consistently applied in statutes since the FAA’s founding in the Federal Aviation Act of 1958. Pub. L. No. 85-726, § 308, 72 Stat. 731, 750-51 (1958). The only [**PAGE 28**] restriction as to airports not using federal funds was that they could not be constructed or have their runways substantially altered in a manner that interfered with the FAA’s authority over airspace. Id. § 309. Likewise, the AAIA requires that airports that receive federal funds be subject to grant assurances. 49 U.S.C. § 47107(a). [FN 9] In short, the historical statutory

[FN 9] Other statutes, in particular the Federal Airport Act of 1946 and the Airport and Airway Development Act of 1970, also used grant agreements to place certain obligations on airports. See, e.g., FAA ORDER 5090.3C, FIELD FORMULATION OF THE NATIONAL PLAN OF INTEGRATED AIRPORT SYSTEMS (NPIAS) § 1-5 (Dec. 4, 2000), available at https://www.faa.gov/airports/resources/ publications/orders/media/planning_5090_3C.pdf.

scheme, established over decades, is one in which the federal government regulates airports that receive federal funds. Any departure from this scheme should not be imputed to Congress based on a statute that mentions no remedy other than loss of funding.

Finally, the FAA has stated that ANCA does not apply when an airport foregoes federal funding. In the Bishop Responses, specifically concerning the East Hampton Airport, the FAA stated in no uncertain terms that, “unless the town wishe[d] to remain eligible to receive future grants of Federal funding, it [was] not required to comply with [ANCA] ... in proposing new airport noise and access restrictions.” App. 52a. The Town relied on that assurance. The court of appeals did not address the import of this letter, and instead relied on FAA regulations as though they decide the issue. App. 33a-34a. But those regulations do not expressly consider airports that have foregone federal funding, and the FAA has never applied these regulations to an airport that has foregone federal funding. Indeed, the FAA has stated that “Part 161 [**PAGE 29**] [the ANCA regulations] concerns notice, review, and approval by the FAA of restrictions by federally funded airport sponsors.” Brief of Respondent FAA at 37-38, Helicopter Ass’n Int’l, Inc. v. FAA, No. 12-1335 (D.C. Cir. Feb. 1, 2013) (emphasis added). The court of appeals’ departure from the FAA’s interpretation of ANCA provides yet another reason for a grant of certiorari.


C. The Legislative History Of ANCA Confirms That There Is No Preemption Here

The legislative history also demonstrates that there was no congressional intent in enacting ANCA to preempt noise regulation by proprietor airports that receive no federal funding and do not impose passenger facility charges. If Congress intended the dramatic changes that Plaintiffs seek, then surely the legislative debate would have revealed as much. But it does not.

The limited discussion of the bill reflects the accepted understanding that it would apply only to federallyfunded airports. Congressman James Oberstar, sponsor of the legislation and Chairman of the Aviation Subcommittee, explained: “Airports which impose unapproved restrictions ... would become ineligible for funds from the Airport Improvement Program and may not impose Passenger Facility Charges.” 136 Cong. Rec. E3693-04, E3694 (Oct. 27, 1990). Similarly, the summary at the start of the hearing report states:

Decisions to build new airports and expand the capacity of existing airports, a critical factor in noise impact, are basically local decisions, based largely on local economic and environmental considerations. The Federal [**PAGE 30**] government has some ability to influence these decisions through its power to grant funds for airport development, and through its power to determine whether the air traffic control systems can accommodate operations from a new or expanded airport.

Federal Aviation Noise Policy: Hearings Before the Subcomm. On Aviation of the H. Comm. on Pub. Works & Transp., 101st Cong., Summary of Subject Matter at 1 (1990) (emphasis added).

The court of appeals suggested (App. 32a) that statements of some senators show an intent to apply ANCA to airports that do not receive federal funds. However, no statement it cited actually referred to airports that are not federally funded. And the court ignored statements from senators making clear that ANCA was mandatory only for airports receiving federal funding. See 136 Cong. Rec. S15777-02, S15818 (Oct. 18, 1990) (remarks of Sen. Lautenberg) (“[I]t says that if an airport is not willing to play ball, it is not going to get Federal funding.”).


III. THE COURT OF APPEALS’ DECISION TO FEDERALIZE ALL THE NATION’S AIRPORTS HAS ENORMOUS, HARMFUL CONSEQUENCES THAT WARRANT THIS COURT’S REVIEW

The effect of the decision below is that virtually every noise and access restriction of every airport must meet FAA approval under ANCA. This federalization of all airports marks a profound shift in how airports have been regulated both in the decades before ANCA was enacted and the decades since. It is also wildly impractical, as it would mean that thousands of small airports must take years and spend [**PAGE 31**] enormous amounts of money to enact something as simple as a curfew—an onerous burden few can possibly undertake.

1. The court of appeals’ ruling radically changes aviation law. There are over 19,500 airports across the nation. FAA, Report to Congress, National Plan of Integrated Airport Systems (NPIAS) 2017-2021, at 2 (Sept. 30, 2016) (“FAA Report”), available at https:// www.faa.gov/airports/planning_capacity/npias/reports/ media/NPIAS-Report-2017-2021-Narrative.pdf. The vast majority (over 80 percent) are actually tiny airstrips or helipads that do not receive federal funding. Id. This includes approximately 14,400 private airports. Id. There are also 1,800 public airports (typically small airports) that cannot receive federal funding because they do not meet the criteria. Id. These airports may have countless rules and regulations, but the FAA does not even record activity at (let alone regulate) these airports. See 49 U.S.C. § 47103; FAA Report at 3.

Under the court of appeals’ interpretation of ANCA, all of these airports now must submit their regulations for FAA approval. The court stated that its decision applies to “public airports,” App. 31a-34a, 42a, seemingly implying that it does not apply to private airports. But there is absolutely no distinction between public and private in ANCA, which simply refers to “airport[s].” 49 U.S.C. § 47524. And the FAA’s regulations make clear that ANCA’s reference to “airport[s]” covers both public and private airports, no matter how small. See 14 C.F.R. § 161.5.

The effect on all airports will be enormous. ANCA covers restrictions as simple as a curfew for night flights, as evident in the decision here. More generally, it includes a wide variety of access restrictions, [**PAGE 32**] regardless of whether the purpose of the restriction was noise-related, as the FAA has made clear in its regulations:

Noise or access restrictions means restrictions ... affecting access or noise that affect the operations of Stage 2 or Stage 3 aircraft, such as limits on the noise generated on either a single-event or cumulative basis; ... a restriction imposing limits on hours of operations; a program of airport-use charges ...; and any other limit on Stage 2 or Stage 3 aircraft that has the effect of controlling airport noise.

Id. In short, under the decision below, every airport must submit for FAA approval every restriction that has an effect on airport noise (through a curfew, airport-use charges, a limit on number of flights, or anything else). The sheer volume of airports would make this completely impractical, as the FAA would face countless requests for approvals. Furthermore, that review process is extraordinarily onerous. It includes a detailed economic analysis of the effect of the restriction, including a cost-benefit analysis. 14 C.F.R. § 161.305(e)(2)(ii)(A). This would take years and cost potentially millions of dollars to perform. See Hollywood Burbank Airport, Part 161 Update, https://bobhopeairport.com/noise-issues/part- 161-update (Part 161 study finished in 2009 by federally funded airport, which was the first ANCA application even deemed complete by the FAA, cost $7 million and was denied). This process is so difficult that not a single airport has ever had a Stage 3 restriction approved by the FAA. There is no plausible explanation for why small airports, including tiny private airstrips, should be forced to expend enormous [**PAGE 33**] time and resources complying with the statute for changes as minor as closing an airstrip an hour early.

2. This would be an unprecedented departure from how aviation law has been interpreted—and regulation of airports has been conducted—since the FAA was founded. As discussed supra at 27-28, prior to the enactment of ANCA, all of the statutes Congress passed concerning FAA jurisdiction and control were limited to those airports that received federal funds. Moreover, in the 26 years since ANCA was enacted, there is no instance of a non-federally funded airport submitting regulations to the FAA for approval. Nor has the FAA ever objected to the failure to submit regulations for approval, notwithstanding that there must have been countless thousands of regulations enacted by small, non-federally funded airports.

Indeed, in 1998, the Second Circuit itself rejected an ANCA challenge to New York City’s helicopter restrictions. See Nat’l Helicopter, 137 F.3d at 92. The Second Circuit held in that case that the proprietor exception set forth the correct test for preemption and that various noise-related regulations were not preempted by federal law. Id. at 89-91. In the district court, then-Judge Sotomayor similarly applied the proprietor exception despite the plaintiff’s assertion that ANCA and other aviation statutes supported a “general claim of implied preemption.” Nat’l Helicopter Corp. of Am. v. City of New York, 952 F. Supp. 1011, 1023 (S.D.N.Y. 1997). The Second Circuit here held National Helicopter not controlling on the ground that the opinion only briefly mentioned ANCA and this supposedly did not constitute a holding. App. 37a-39a. But regardless, there is no question that National Helicopter was the benchmark for the applicability of ANCA for almost 20 years, and that this new [**PAGE 34**] approach represents a significant change in the law for municipalities like the Town, New York City, and other airport proprietors across the country.

The decision below dismissed the importance of these effects by suggesting that, “[t]o the extent the process is inherently burdensome, that decision was, in the first instance, Congress’s.” App. 40a. But “Congress ... does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not, one might say, hide elephants in mouseholes.” Gonzales v. Oregon, 546 U.S. 243, 267 (2006) (quotation marks omitted). Thus, courts should not presume that Congress sub silentio dramatically enlarged the FAA’s authority and the burdens on small airports. Rather, what Congress did — and everyone for 26-plus years believed it did—was to provide an incremental addition of FAA oversight over noise regulations at federally-funded airports, policed solely by use of federal funds.


CONCLUSION

The Court should grant the petition for certiorari.


Respectfully submitted,


KATHLEEN M. SULLIVAN
Counsel of Record
DAVID M. COOPER
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
51 Madison Avenue
22nd Floor
New York, NY 10010
(212) 849-7000
kathleensullivan@quinnemanuel.com
Counsel for Petitioner

March 6, 2017

[Appendixes in the original writ petition are omitted in this reposting at AirportNoiseLaw.org]


APPENDIX A – Second Circuit Opinion Friends of East Hampton Airport et al. v. Town of East Hampton (Nov. 4, 2016)

APPENDIX B – District Court Order Granting In Part and Denying In Part Motion For Preliminary Injunction Friends of East Hampton Airport et al. v. Town of East Hampton (June 26, 2015 )

APPENDIX C – Relevant Statutory Provisions