Introduction

Federal preemption is a defense to state-law action. In essence, the defense argument is that the state law is in conflict with federal law and thus the complaint should be heard in federal court or dismissed because the state has no authority to set the remedies requested (injunctive relief or compensatory damages). "Complete preemption" is a jurisdictional concept; it has to do with the ability of a state court to hear a case. "Conflict preemption" relates to the merits of the claim.

"Conflict preemption" can be total or partial. The ultimate question in any preemption inquiry is whether the Congress intended that the federal government should have exclusive control over a certain field or area of law. Courts often speak of Congress "occupying the field (of law)", and thus total preemption is sometimes called "field preemption". The field deemed preempted may be narrowly or broadly defined.

In addition, a federal statute may expessly provide for exceptions to preemption. Thus the Federal Aviation Act of 1958 has a savings clause: "Nothing contained in this Act shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition to such remedies." (Pub.L. 85-276, 72 Stat. 31, codified 49 USC 40120(c).) (This provision was amended in 1994 to read: "A remedy under this part is in addition to any other remedies provided by law." See Pub.L. 103-272, §1(e), 108 Stat. 1117.)

A conclusion of total preemption is based on the finding that a federal regulatory scheme is so pervasive that Congress left no room for the states or local government. A conclusion of partial preemption leaves the door open to state or local government regulation.

The following opinions contain good discussions of federal preemption of actions related to airport noise:

Casey et al. v. Goulian et al., 2003 (U.S. District Ct., D Mass.)

Gustafson v. City of Lake Angelus, 1996 (6th Cir. Ct. App., 76 F.3d 778)

State of Minnesota Public Lobby v. Metropolitan Airports Comm., 1994 (Minn. Supreme Ct., 507 N.W.2d 19)

Cases

All of the opinions cited here were issued after enactment of the Noise Control Act of 1972 (see "Federal Statutes" below) and the U.S. Supreme Court's 1973 opinion in City of Burbank v. Lockheed Air Terminal, Inc.. Opinions before Burbank have limited, if any, precedential value on the question of preemption of the areas of interest here.

(1) Preemption Found

Burbank-Glendale-Pasadena Airport Authority v. City of Los Angeles (1992, 9th Cir. Ct. App.) — Ordinance regulating taxiways and runways is preempted by FAA regulations because it interferes with movement and operation of aircraft. (979 F.2d 1338) (The court's opinion was expressly rejected in People v. City of Chicago, 2002, below.)

City of Burbank v. Lockheed Air Terminal, Inc. (1973, U.S. Supreme Ct.) — City's ordinance imposing curfew on takeoffs to control noise is preempted by federal Noise Control Act. (411 U.S. 624, 36 L.Ed.2d 547, 93 S.Ct. 1854)

County of Cook v. Preister (1974, Ill. App. Ct.) — A county regulation that restricted aircraft over a certain weight from using airport is preempted. (22 Ill. App. 3d 964)

Gary Leasing, Inc. v. Town Board (1985, xxxx) — An ordinance limiting flight operations and imposing curfew on flights is preempted. (127 Misc. 2d 194, 485 N.Y.S.2d 693)

Harrison v. Schwartz (1990, Md. Ct. App.) — A local ordinance imposing curfews and limitations on landing patterns is preempted. (319 Md. 360, 572 A.2d 528)

Krueger v. Mitchell (1983, Wisc. Supreme Ct.) — A private cause of action seeking to enjoin flights over plaintiff's business is preempted. (112 Wis.2d 88, 332 N.W.2d 733)

Luedtke v. County of Milwaukee et al. (1975, 7th Cir. Ct. App.) — County's action to abate airport noise by establishing flight patterns, air traffic corridors, noise control standards, and rules governing emissions is preempted. (521 F.2d 387)

National Helicopter Corp. of America v. City of New York et al. (1998, 2d Cir. Ct. App.) — Some aspects of a city zoning ordinance restricting helicopter operations are preempted by federal aviation law but others are not. (137 F.3d 81)

Northeast Phoenix Homeowners' Ass'n v. Scottsdale Municipal Airport (1981, Ariz. App. Ct.) — Action by city-owner of airport limiting flight operations and imposing curfew on flights is preempted. Courts cannot order airports to do what the airports are prohibited from doing because of preemption, i.e., preemption extends to injunctive relief. (130 Ariz. 487, 636 P.2d 1269)

Price v. Charter Township (1995, U.S. District Ct., ED Mich.) — A local ordinance limiting frequency of flights is preempted. (909 F. Supp. 498)

San Diego Unified Port District v. Gianturco (1981, 9th Cir. Ct. App.) — Enforcement of California's airport noise regulatory scheme against an airport is preempted according to the holding of Burbank. But see Air Transportation Assn. of America v. Crotti (no preemption of the regulatory scheme per se). (651 F.2d 1306)

State of Minnesota Public Lobby v. Metropolitan Airports Comm'n (1994, Minn. Supreme Ct.) — Setting of maximum noise levels by a state agency is preempted. But see Air Transportation Assn. of America v. Crotti (no preemption of California's airport noise regulatory scheme per se). (520 N.W.2d 388)

Township of Hanover v. Town of Morristown, (1975, xxxx) — An order limiting times of flights is preempted. (135 N.J. Super. 529, 343 A.2d 793)

United States v. City of Berkeley (1990, U.S. District Ct., ED Mo.) — Ordinance directly in conflict with FAA's express authority to regulate air navigation facilities. (735 F. Supp. 937)

Village of Bensenville v. City of Chicago (1973, Ill. Ct. App.) — A nuisance action seeking to impose maximum noise levels is preempted. (16 Ill. App. 3d 733)

(2) No Preemption Found

Air Transportation Assn. of America v. Crotti (1975, U.S. District Ct., ND Calif.) — California's airport noise regulatory scheme, per se, is not preempted by federal aviation law and thus not invalid. However, the court left open the question whether some application of the law would be preempted. This very issue later came before the 9th Circuit Court in San Diego Unified Port District v. Gianturco (enforcement is preempted). (521 F.2d 387)

Alaska Airlines et al. v. City of Long Beach et al. (1990, 9th Cir. Ct. App.) — City ordinance designed to abate aircraft noise (reducing the number of permitted daily carrier flights) is not preempted by federal aviation law because it is a valid exercise of its proprietary powers. (951 F.2d 977)

Arapahoe Co. Public Airport Auth. v. Centennial Express (1998, Colo. Supreme Ct.) — Airport's ban on scheduled passenger service is not preempted by federal aviation law because it is a valid exercise of its proprietary powers. (956 P.2d 587)

Arrow Air, Inc. v. Port Auth. of NY and NJ (1985, U.S. District Ct., SD N.Y.) — The Authority's aircraft noise regulations prohibited a "stage 1" aircraft from using its airport, even though the FAA had issued a waiver from federal restrictions for the aircraft. Held: enforcement of the Authority's regulations are not preempted by federal aviation law. The Aviation Safety Noise Abatement Act of 1979 does not limit an airport proprietor's rights to promulgate noise regulations.

Baker et al. v. Burbank-Glendale-Pasadena Airport Authority (1985, Calif. Supreme Ct.) — Federal preemption of local regulation of airport noise is not absolute. In fact, the Authority is required by legislative act creating it to "pursue all reasonable avenues available to insure that the adverse effects of noise are being mitigated to the greatest extent reasonably possible." "Airport operations are the quintessential continuing nuisance. Although federal law precluding interference in any way with flight patterns and schedules adds an element of permanency to an otherwise continuing problem, it does not mandate that the overall nuisance is a permanent one. Thus plaintiffs may elect whether to treat airport noise and vibrations as a continuing or as a permanent nuisance." (39 Cal.3d 862, 218 Cal.Rptr. 293, 705 P.2d 866)

Bieneman v. City of Chicago (1988, 7th Cir. Ct. App.) — "Illinois has some role ... in governing the amount of noise and pollution that escapes from O'Hare [Airport]." Thus the state's damages remedies are not preempted where they "enforce federal [aviation] requirements" or "regulate aspects of airport operations over which the state has discretionary authority." (864 F.2d 463)

British Airways Bd. v. Port Authority of NY & NJ (1977, 2d Cir. Ct. App.) — The Authority temporarily banned landing of the supersonic Concorde at its airport, although the Secretary of Transportation had ordered the FAA to allow the aircraft to operate at U.S. airports in a 16-month operational test. The trial court ruled that the Secretary's order preempted the Authority's power to abate, through its temporary ban, the noise generated by the Concorde during landings and take-offs. The 2d Circuit reverses: "The Congress provided for the promulgation by airport proprietors of reasonable regulations to establish acceptable noise levels for the airfield and its environs." (558 F.2d 75)

Casey et al. v. Goulian et al. (2003, U.S. Dist. Ct., D. Mass.) — State-law claims for nuisance caused by stunt flying are not preempted by federal aviation law.

City of Burbank v. Burbank-Glendale-Pasadena Airport Authority (1999, Cal. Ct. App.) — No preemption of state statute establishing local procedures for regulating purchase of land for airport use. "Local governments retain their power to regulate land use, even with regard to safety and noise control, so long as it does not touch upon the control of aircraft or airspace." "The FAA has the sole authority to regulate the use of airspace .... [This authority] does not extend to regulation of ground facilities." (72 Cal.App.4th 366, 85 Cal.Rtpr.2d 28)

City of Cleveland v. City of Brook Park (1995, U.S. Dist. Ct., N.D. Ohio) — Cleveland planned to expand runways of its airport into Brook Park. Subsequently Brook Park revised its zoning ordinances to require a discretionary conditional use permit for construction of new runways. Held: the zoning ordinance is not preempted by FAA regulations because it does not directly regulate flight operations of aircraft. (893 F.Supp. 742)

Cleveland v. Piper Aircraft (1993, 10th Cir. Ct. App.) — Cleveland sued Piper for injuries he received when his Piper-made airplane crashed during takeoff. The court ruled that Cleveland's claims were not preempted by federal aviation law. "We conclude that Congress has not indicated a 'clear and manifest' intent to occupy the field of airplane safety to the exclusion of state common law. To the contrary, it appears ... that Congress has intended to allow state common law to stand side by side with the system of federal regulations it has developed." (985 F.2d 1438)

Condor Corp. v. City of St. Paul (1990, 8th Cir. Ct. App.) — City's denied Condor a permit to use property for a heliport for helicopter services. Held: city requirement of a permit is not preempted by federal aviation regulation. (912 F.2d 215)

Emerald Development Co. v. McNeill (2003, Ark. Ct. App.) — Court affirms injunction against building an airport close to another another airport on the grounds that the new airport would be a nuisance. The court finds no federal preemption of its ability to issue an injunction since it is not engaged in regulation of airspace but in the regulation of land use. That is, the location of the new airport interferes with the rights of the owners of the existing, nearby airport. (120 S.W.3d 605)

Faux-Burhans v. County Commissioners (1987, U.S. District Ct., D. Md.) — Local ordinance regulating take-off distance, setbacks, types of flights, and intensity of airport use is not preempted by Noise Control Act. (674 F.Supp. 1172)

Garden State Farms, Inc. v. Bay (1978 N.J. Sup. Ct.) — Plaintiff sought to construct a heliport near a heavily traveled thoroughfare opposite a residential neighborhood. Ordinance prohibiting heliports in the area in order to protect the "general quality of life" is not preempted by federal aviation regulation. (390 A.2d 1177)

Greater Westchester Homeowners Assn. v. City of Los Angeles (1979, Calif. Supreme Court) — A nuisance cause of action arising from aircraft noise is not preempted by federal regulation of aviation. (26 Cal.3d 86, 160 Cal.Rptr. 733, 603 P.2d 1329)

Gustafson v. City of Lake Angelus (1996, 6th Cir. Ct. App.) — City ordinances prohibiting the operation of seaplanes on the surface of a lake are not preempted by federal aviation law. (76 F.3d 778)

Hoagland v. Town of Clear Lake (2005, 7th Cir. Ct. App.) — The Indiana town had amended its zoning ordinance to get rid of a privately operated heliport on the grounds that the helicopter takeoffs and landings were a public nuisance. The heliport owners sued the town. The court held that the town was not preempted by federal aviation law from enacting a zoning ordinance regulating aircraft, landing strips, pads, and spaces. "The siting of an airfield — so long as it does not interefere with existing [air] traffic patterns, etc. — remains an issue for local control." (415 F.3d 693).

In Re Commercial Airfield (2000, Vermont) — A crop duster base in Vermont claimed that it was not required to obtain a state permit for certain expansions of its facilities and operations, arguing that federal law preempted such state regulation. The court concluded that a state permit was necessary, because "the federal government has not pervasively occupied the field of land-use regulations relating to aviation." (752 A.2d 13)

Krueger v. Mitchell (1983, Wisc. Supreme Ct.) — An airport operating in conformance with state and federal law may nevertheless constitute a nuisance, and the Federal Aviation Act does not preempt damages for unreasonable noise from an airport. (112 Wis.2d 88, 332 N.W.2d 733)

Kupster Realty Corp. v. State of New York (1978, Ct. of Claims of N.Y.) — The state is not preempted by federal aviation law from imposing avigation easements on land adjacent to an airport. Held: "[W]hile the airspace above the F.A.A. airport landing and takeoff approach surfaces ... is part of the federal navigable airspace, and thus part of the federal public domain ..., the federal government has evidently decided not to fully preempt its rights of control therein. A possible reason for this federal reticence is that a full federal preemption would most likely subject the federal government to the inverse condemnation suits currently brought against local airport owners, or require it to appropriate avigation easements like the ones here. Aside from the expense, such suits or appropriations would lead to what could be considered an excessive federal involvement in matters more properly resolved by local authorities. Whatever the reason, we think the conclusion that the subject regulations did not directly restrict private landowners is consistent with evident federal intent and policy." (404 N.Y.S.2d 225)

National Helicopter Corp. of America v. City of New York et al. (1998, 2d Cir. Ct. App.) — Some aspects of a city zoning ordinance restricting helicopter operations are not preempted by federal aviation law but others are. (137 F.3d 81)

People v. City of Chicago (2002, Ill. Ct. App.) — Requirement in state Aeronautics Act that owner of airport obtain a certificate from state Dept. of Transportation for airport expansion plan is not preempted by provisions of the Federal Aviation Act, Noise Control Act, or Airport and Airway Improvement Act of 1994. (Case arose because state disagreed with Chicago's plans for expansion of O'Hare Airport.) (202 Ill.2d 36, 779 N.E.2d 875)

People v. Valenti (1984, Appellate Dept. Calif. Superior Ct.) — State crime of dangerous and reckless flying is not preempted by federal aviation law. Held: "The state has the right to impose criminal sanctions for the unlawful operation of aircraft above its land and waters." (153 Cal.App.3d Supp. 38, 200 Cal.Rptr. 862)

Riggs v. Burson (1997, Tenn. Supreme Ct.) — A state statute prohibiting use of land for a heliport within nine miles of a national park is not preempted by federal aviation law.

Sea Air NY, Inc. v. City of New York (2001, 2d Cir. Ct. App.) — City's restriction on operation of seaplane sightseeing tours to reduce noise is not preempted. (250 F.3d 183)

Skysign Int'l, Inc. v. City and County of Honolulu (2002, 9th Cir. Ct. App.) — A local ordinance regulating aircraft-towed advertising banners is not preempted. In reaching its decision the court relied on a statement in the FAA's guidelines for preparing a "Certificate of Waiver" for banner towing (FAA Order 8700.1, Vol. 2, Chap. 45). The statement had conditioned the waiver on any "state and local ordinances that may prohibit or restrict banner tow operations." Following the court's decision the FAA deleted the statement (see FAA Notice N 8700.16, October 7, 2002). Thus the Skysign decision has no precedential value. (276 F.3d 1109)

Tipp City v. Dayton (2001, U.S. District Ct., SD Ohio) — State-law nuisance claim based on airplane noise is not preempted by federal aviation law.

Federal Statutes

Congress enacted the Federal Aviation Act of 1958 (Pub.L. No. 85-726, 72 Stat. 731) "to establish a new Federal agency with powers adequate to enable it to provide for the safe and efficient use of the navigable airspace by both civil and military operations." (H.R.Rep. No. 2360, 85th Cong., 2d Sess. 1, reprinted in 1958 U.S.C.C.A.N. 3741, 3741.) The Act directed the Federal Aviation Agency to regulate "air commerce in such manner as to best promote its development and safety and fulfill the requirements of national defense." (Pub.L. No. 85-726, sec. 103.)

The Act contains a savings clause:

A remedy under this part is in addition to any other remedies provided by law.

Nothing contained in this Act shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition to such remedies.

Noise Control Act of 1972

Noise Control Act of 1972, 42 U.S.C. 4901 et seq., amended the Federal Aviation Act of 1958 and the regulations promulgated thereunder. The leading case on the Noise Control Act is Burbank v. Lockheed Air Terminal, 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973). Justice Douglas, writing for a 5-4 majority, conducted a detailed analysis of the Act and its legislative history and concluded that the "pervasive nature of the scheme of federal regulation of aircraft noise" constituted preemption. (411 U.S. at 633, 93 S.Ct. at 1859.)

However, in a footnote Douglas expressly acknowledged that the court "do(es) not consider here what limits, if any, apply to a municipality as a proprietor." (411 U.S. at 635-36 n. 14, 93 S.Ct. at 1161.) In 1976 the principle of the "proprietor's exception" was articulated by a U.S. District Court (see below).

Airport's Proprietor's Exception

The "proprietor's exception" is an important principle relating to federal aviation law's preemption of local authority to regulate airport operations. Because of preemption, cities, counties, and states are not able to regulate airport operations based on their "general police powers". They can regulate an airport, however, if they own the airport. This principle was first enunciated in National Aviation v. City of Hayward (U.S. District Ct., N.D. Cal. 1976; 418 F.Supp. 417)

In U.S. v. State of New York the court reasoned that a curfew imposed by the state pursuant to both its police and proprietary powers was entitled to analysis under the proprietor exception (U.S. District Ct., N.D. N.Y. 1982; 552 F.Supp 255, 264). This rule was adopted by the Second Circuit Court of Appeals in National Helicopter Corp. of America v. City of New York et al. (1998; 137 F.3d 81)

It is the FAA's position that the proprietor's exception applies only to actions where the airport owner is exposed to potential or actual liability for damages caused by noise from aircraft operations at the airport. See Director's Determination: In re. Naples Airport Authority (2003, FAA Docket 16-01-15), where the FAA concluded that the Authority was not entitled to claim the proprietor's exception for a ban on all stage-2 jets because it had not demonstrated potential or actual liability for damages due to stage-2 operations. Without the proprietor's exception the ban was preempted by federal law and thus constituted an unlawful exercise of police powers to regulate aircraft noise.

FAA Policy Statements

"Public controls on the use of land are commonly exercised by zoning. Zoning is a power reserved to the states under the U.S. Constitution. It is an exercise of the police powers of the states that designates the uses permitted on each parcel of land." (60 Federal Register 14701, March 20, 1995, regarding 14 CFR Part 150.)

"Our concept of the legal framework underlying this [aviation noise abatement] policy statement is that proprietors retain the flexibility to impose such restrictions if they do not violate any Constitutional proscription. We have been urged to undertake — and have considered carefully and rejected — full and complete federal preemption of the field of aviation noise abatement. In our judgment the control and reduction of airport noise must remain a shared responsibility among airport proprietors, users, and governments." (Aviation Noise Abatement Policy, November 18, 1976.)

Literature

"Aircraft Noise Abatement: Local versus National Control." 1970 Law & Soc. Order 678 (1970).

"An Airport's Reasonable Nondiscriminatory Noise Level Regulations Are Not Preempted by Federal Law." 18 Va. J. Int. Law 569-579 (1978).

Berg, David. "Proprietor's Rights: A Debate — Preemption and Proprietary Powers: A Limited Exception." 15 Air Space Law J. 5 (2001).

"Concorde (British Airways Bd. v. Port Authority of NY & NJ) and Local Control of Airport Noise: Federal Preemption?" 13 New England Law Rev. 473-503 (1978).

"Don't Let Preemption Ground Your Aviation Case." Trial 43(3):36 (March 2007).

"Environmental Law — Aircraft Noise Regulation — Federal Preemption." 20 N.Y. Law Forum 165-176 (1974).

[Note] "Federal Preemption in Airport Noise Abatement Regulation: Allocation of Federal and State Power." 26 Maine Law Rev. 321-344 (1974).

[Note] "Federal Regulation under Federal Aviation Act and Noise Control Act Preempts the Field of Airport and Aircraft Noise Control Rendering Local Airport Curfews Invalid." 22 Univ. Kans. Law Rev. 319-336 (1974).

Gallagher, James A., and Michael J. Crowley. "How High Will It Fly? Federal Preemption in Aviation Litigation." For the Defense, Aug. 2004.

Goldstein, Marcia C. Note, "Aircraft Noise Abatement: Is There Room for Local Regulation?" 60 Cornell Law Rev. 269-298 (1975).

Hoke, S. Candice. "Preemption Pathologies and Civic Republican Values." 71 Boston Univ. Law Rev. 685 (1991). Listing and discussion of U.S. Supreme Court's various classifications of preemption cases.

Jablonski, Barbara H. "Federal Preemption and Airport Noise Control." 8 Urban Law Ann. 229-239 (1974).

Katz, Judith. Note, "Federal Preemption of Local Airport Noise Regulation." 25 Cath. U. Law Rev. 580-600 (1976).

Muss, Joshua A. Comment. "Aircraft Noise: Federal Preemption of Local Control, Concorde and other Recent Cases." 43 J. Air Law Comm. 753-798 (1977).

Stein, Michael. [Note] "The Effect of the Federal Preemption of Noise Control and Air Pollution on Local Initiative: Can Prometheus Be Unbound?" 38 J. Air Law Comm. 427-436 (1972).

Strauss, David. [Case Note] "Federal Regulation of Aircraft Noise under Federal Aviation Act Precludes Local Police Power Noise Restrictions (City of Burbank v. Lockheed Air Terminal)." 15 Boston Coll. Ind. & Com. Law Rev. 848-862 (1974).

"Use of Local Police Powers to Impose Curfews on Air Flights is Preempted by the Federal Aviation Act of 1958 as Amended by the Noise Control Act of 1972." 5 Rutgers Camden Law J. 566-584 (1974).