15-2334-cv(L)
Friends of The East Hampton Airport,Inc v. Town of East Hampton
In the
United States Court of Appeals
For the Second Circuit
________________
August Term, 2015
(Argued: June 20, 2016 Decided: November 4, 2016)
Docket Nos. 15‐2334‐cv(L), 15‐2465‐cv(XAP)
________________
FRIENDS OF THE EAST HAMPTON AIRPORT, INC., ANALAR CORPORATION,
ASSOCIATED AIRCRAFT GROUP, INC., ELEVENTH STREET AVIATION LLC,
HELICOPTER ASSOCIATION INTERNATIONAL, INC., HELIFLITE SHARES, LLC, LIBERTY
HELICOPTERS, INC., SOUND AIRCRAFT SERVICES, INC., NATIONAL BUSINESS
AVIATION ASSOCIATION, INC.,
Plaintiffs‐Appellees‐Cross‐Appellants,
—v.—
TOWN OF EAST HAMPTON,
Defendant‐Appellant‐Cross‐Appellee.
________________
Before:
JACOBS, CALABRESI, RAGGI, Circuit Judges.
________________
1
On cross appeals from an order of the United States District Court for the
Eastern District of New York (Seybert, J.) granting in part and denying in part a
motion for a preliminary injunction to bar enforcement of three local laws
limiting access to the town’s airport operations, the defendant municipality
challenges the court’s determination that the enactment of one law, placing a
numerical limit on weekly flights, was an unreasonable exercise of the town’s
reserved proprietary authority under the Airline Deregulation Act of 1978, see 49
U.S.C. § 41713(b)(3). Plaintiffs defend that decision, and challenge the partial
denial of the preliminary injunction, arguing that federal preemption precludes
enforcement of all three laws because they were enacted in violation of the
procedural requirements of the Airport Noise and Capacity Act of 1990, see 49
U.S.C. §§ 47521–47534.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
________________
KATHLEEN M. SULLIVAN (W. Eric Pilsk, Kaplan, Kirsch & Rockwell,
LLP, Washington, D.C.; David M. Cooper, Quinn Emanuel
Urquhart & Sullivan, LLP, New York, New York, on the brief),
Quinn Emanuel Urquhart & Sullivan, LLP, New York, New
York, for Defendant‐Appellant‐Cross‐Appellee.
2
LISA R. ZORNBERG (Helen A. Gredd, Jonathan D. Lamberti, on the
brief), Lankler Siffert & Wohl LLP, New York, New York, for
Plaintiffs‐Appellees‐Cross‐Appellants.
Lauren L. Haertlein, General Aviation Manufacturers Association,
Washington, D.C., Amicus Curiae in support of Plaintiffs‐
Appellees‐Cross‐Appellants.
________________
REENA RAGGI, Circuit Judge:
We here consider cross appeals from an order of the United States District
Court for the Eastern District of New York (Joanna Seybert, Judge), granting in
part and denying in part a motion for a preliminary injunction to bar
enforcement of three local laws restricting operations at a public airport located
in and owned and operated by the Town of East Hampton, New York (the
“Town” and the “Airport”). See Friends of the E. Hampton Airport, Inc. v. Town of
E. Hampton, 152 F. Supp. 3d 90 (E.D.N.Y. 2015). Plaintiffs, who sought the
injunction, represent various aviation businesses that use the Airport and
representative entities. The district court enjoined the enforcement of only one of
the challenged laws—imposing a weekly flight limit—concluding that it reflected
a likely unreasonable exercise of the Town’s reserved proprietary authority,
3
which is excepted from federal preemption by the Airline Deregulation Act of
1978 (“ADA”), 49 U.S.C. § 41713(b)(3).
The Town challenges the district court’s rejection of this proprietor
exception with respect to the weekly flight‐limit law. Plaintiffs defend the
district court’s decision as to that law, and, on cross appeal, argue that
enforcement of all three challenged laws should have been enjoined. Specifically,
plaintiffs contend that none of the challenged laws falls within the ADA’s
proprietor exception to federal preemption because the Town failed to comply
with the procedural requirements of the Airport Noise and Capacity Act of 1990
(“ANCA”), see 49 U.S.C. §§ 47521–47534, in enacting them. The Town counters
that plaintiffs cannot invoke equity jurisdiction to enforce ANCA’s procedural
requirements, and that compliance with these procedures is not required because
the Town is willing to forgo future federal funding for its airport.
We identify merit in plaintiffs’ ANCA argument and resolve these cross
appeals on that basis without needing to address the Town’s proprietor
exception challenge. Specifically, we conclude that plaintiffs (1) can invoke
equity jurisdiction to enjoin enforcement of the challenged laws; and (2) are
4
likely to succeed on their preemption claim because it appears undisputed that
the Town enacted all three laws without complying with ANCA’s procedural
requirements, which apply to public airport operators regardless of their federal
funding status.
We affirm the district court’s order insofar as it enjoins enforcement of the
weekly flight‐limit law, but we vacate the order insofar as it declines to enjoin
enforcement of the other two challenged laws. In so ruling, we express no view
as to the wisdom of the local laws at issue. We conclude only that federal law
mandates that such laws be enacted according to specified procedures, without
which they cannot claim the proprietor exception to federal preemption.
Accordingly, we remand the case to the district court for the entry of a
preliminary injunction as to all three laws and for further proceedings consistent
with this opinion.
5
I. Background1
A. The East Hampton Airport
The Town of East Hampton, located approximately 100 miles east of New
York City, is a popular summer vacation destination on the south shore of Long
Island. Its year‐round population of approximately 21,500 more than quadruples
to approximately 94,000 in the months of May through September (the
“Season”). This results in increased traffic, including air traffic, and attendant
noise.
The Town owns and operates East Hampton Airport (the “Airport”),
which is a public use, general aviation facility servicing domestic and
international flights. The Federal Aviation Administration (“FAA”) has
designated the Airport as a “regional” facility “significant” to the national
aviation system. J.A. 117. Although the Airport provides no scheduled
commercial service, it serves a range of private and chartered helicopters and
fixed‐wing aircraft. In 2014, the Airport supported 25,714 operations, i.e., take‐
1 Because discovery has not yet taken place, the stated background derives from
plaintiffs’ amended complaint and from the declarations submitted by the parties
in litigating plaintiffs’ preliminary injunction motion.
6
offs or landings, by such aircraft. On the busiest day of that calendar year,
Friday, July 25, 2014, the Airport supported 353 operations between 3:04 a.m. and
11:08 p.m.
B. The Town’s Efforts To Control Airport Noise
For more than a decade before the enactment of the laws at issue in this
action, Town residents had expressed concern about Airport noise. Counsel for
the Town, however, repeatedly advised the Town that federal law placed
significant limitations on its ability to restrict Airport access to reduce noise.
1. Federal Limitations on Local Noise Regulation
a. The Town’s Receipt of AIP Grants
The Town was advised that its obligation to comply with federal law
derived, in part, from its receipt of federal funding under the Airport and
Airway Improvement Act of 1982 (the “AAIA”), Pub. L. No. 97‐248, 96 Stat. 671
(recodified at 49 U.S.C. § 47101 et seq.). The AAIA established the Airport
Improvement Program (the “AIP”), which extends grants to airports that, in
return, provide statutorily mandated assurances to remain publicly accessible
and to abide by federal aviation law and policy. See 49 U.S.C. §§ 47107(a)(1),
47108(a).
7
The Town’s most recent AIP grant, received on September 25, 2001, was
for $1.4 million to rehabilitate the Airport’s terminal apron. In the grant
agreement, the Town certified that for a period of twenty years—i.e., through
September 25, 2021—it would comply with certain specified assurances. See
Pacific Coast Flyers, Inc. v. County of San Diego, FAA Dkt. No. 16‐04‐08, 2005 WL
1900515, at *11 (July 25, 2005) (“Upon acceptance of an AIP grant, the grant
assurances become a binding contractual obligation between the airport sponsor
and the Federal government.”). These included assurances to make the Airport
available “for public use on reasonable terms and without unjust discrimination
to all types, kinds and classes of aeronautical activities,” J.A. 61 (Grant Assurance
22(a)), and to “comply with all applicable Federal laws, regulations, executive
orders, policies, guidelines, and requirements as they relate to the application,
acceptance and use of Federal funds . . . including but not limited to . . . Title 49
U.S.C., subtitle VII,” id. at 53 (Grant Assurance 1(a)).
8
b. ANCA’s Procedural Requirements for Local Laws
Limiting Access to Public Airports
Subtitle VII (referenced in Grant Assurance 1(a), at Part B, Chapter 475,
Subchapter II) encompasses the Airport Noise and Capacity Act of 1990
(“ANCA”), Pub. L. No. 101‐508, 104 Stat. 1388 (recodified at 49 U.S.C. §§ 47521–
47534). This statute, which is at the core of plaintiffs’ preemption claim,
(1) directs the Department of Transportation (which has delegated its authority
to the FAA) to establish “a national aviation noise policy,” 49 U.S.C. § 47523(a),
including “a national program for reviewing airport noise and access restrictions
on operations of Stage 2 and Stage 3 aircraft,” id. § 47524(a); and (2) outlines the
requirements of that program. Acting under the authority delegated by the
Department of Transportation, the FAA promulgated a national aviation noise
policy through 14 C.F.R. Part 161, the “notice, review, and approval
requirements,” which “apply to all airports imposing noise or access restrictions.”
14 C.F.R. § 161.3(a), (c) (emphasis added).
ANCA’s requirements vary based on the type of aircraft at issue. “Aircraft
are classified roughly according to the amount of noise they produce, from Stage
1 for the noisiest to Stage 3 for those that are relatively quieter.” City of Naples
9
Airport Auth. v. FAA, 409 F.3d 431, 433 (D.C. Cir. 2005).2 In ANCA, Congress
states that airport operators may impose noise or access restrictions on Stage 2
aircraft “only” upon 180 days’ notice and an opportunity for comment. 49 U.S.C.
§ 47524(b).3 Local restrictions on Stage 3 aircraft “may become effective only if”
2 In 2005, the FAA promulgated an additional Stage 4 classification for aircraft
that operate beneath the noise thresholds specified for Stage 3 and that are,
therefore, protected by the same requirements. See Stage 4 Aircraft Noise
Standards, 70 Fed. Reg. 38742, 38743 (July 5, 2005). In 2012, Congress enacted
section 506 of the FAA Modernization and Reform Act of 2012, Pub. L. No. 112‐
95, 126 Stat. 11, 105 (codified at 49 U.S.C. § 47534(a)), which provided for Stage 2
aircraft operations to be phased out by December 31, 2015.
3 The relevant provision states that an airport restriction on Stage 2 aircraft may
take effect
only if the airport operator publishes the proposed restriction and
prepares and makes available for public comment at least 180 days
before the effective date of the proposed restriction—
(1) an analysis of the anticipated or actual costs and
benefits of the existing or proposed restriction;
(2) a description of alternative restrictions;
(3) a description of the alternative measures considered
that do not involve aircraft restrictions; and
10
they have either been “agreed to by the airport proprietor and all aircraft
operators” or “submitted to and approved by the Secretary of Transportation
after an airport or aircraft operator’s request for approval.” Id. § 47524(c)(1).
c. Federal Preemption of Local Police Power To Regulate
Airport Noise
The Town was further advised that, even after expiration of the twenty‐
year AAIA compliance period—indeed, even if it had never accepted any AIP
grants—the Airport would not be “free to operate as it wishes” because the
federal statutory limitations applied regardless of whether an airport is subject to
grant assurances. J.A. 239–240; see also id. at 273 (stating that “Town does not
now have ‘local control’ and seeking FAA grants does not fundamentally change
that legal reality,” and that “[o]nly way to achieve local control is to close
airport”).
(4) a comparison of the costs and benefits of the
alternative measures to the costs and benefits of the
proposed restriction.
49 U.S.C. § 47524(b).
11
Such limitations were first acknowledged by the Supreme Court more than
40 years ago in City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973).
Referencing the Supremacy Clause, see U.S. Const. art. VI, cl. 2, the Court there
concluded that “the pervasive nature of the scheme of federal regulation of
aircraft noise”—manifested by the Federal Aviation Act of 1958, Pub. L. No. 85‐
726, 72 Stat. 731, as amended by the Noise Control Act of 1972, Pub. L. No. 92‐
574, 86 Stat. 1234, and FAA regulations promulgated thereunder—had
completely preempted the states’ traditional police power to regulate noise in
that area. Id. at 633; see id. at 638 (reasoning that “pervasive control vested in
[federal agencies] under the 1972 Act seems to us to leave no room for local
curfews or other local controls”).
d. The ADA Codifies a Proprietor Exception to
Preemption
In City of Burbank, the Supreme Court specifically did not consider whether
the same preemption that applied to local police power also applied to local
proprietary authority. See id. at 635 n.14 (observing that “authority that a
municipality may have as a landlord is not necessarily congruent with its police
power”). Since City of Burbank, federal courts, including our own, have
12
concluded that municipalities retain some proprietary authority to control noise
at local airports, although that role is “extremely limited.” British Airways Bd. v.
Port Auth. of N.Y. & N.J. (“Concorde II”), 564 F.2d 1002, 1010 (2d Cir. 1977). We
reasoned that, because an airport proprietor “controls the location of the facility,
acquires the property and air easements and [can] assure compatible land use,” it
might be liable to other property owners for noise damage and, thus, has a right
“to limit [its] liability by restricting the use of [its] airport.” British Airways Bd. v.
Port Auth. of N.Y. & N.J. (“Concorde I”), 558 F.2d 75, 83 (2d Cir. 1977) (citing Griggs
v. Allegheny Cty., 369 U.S. 84 (1962)). That right, however, is narrow, vesting the
proprietor “only with the power to promulgate reasonable, nonarbitrary and
non‐discriminatory regulations that establish acceptable noise levels for the
airport and its immediate environs.” Id. at 84. Moreover, such regulations must
be “consistent with federal policy; other, noncomplementary exercises of local
prerogative are forbidden.” Id. at 84–85.
Congress codified the so‐called “proprietor exception” in the Airline
Deregulation Act of 1978 (“ADA”), Pub. L. No. 95‐504, 92 Stat. 1705 (codified at
49 U.S.C. § 41713(b)). At the same time that the ADA expressly preempts all
13
state and local laws or regulations “related to a price, route, or service of an air
carrier,” id. § 41713(b)(1), it clarifies that such preemption does not limit “a State,
political subdivision of a State, or political authority of at least 2 States that owns
or operates an airport served by [federally certified air carriers] from carrying out
its proprietary powers and rights,” id. § 41713(b)(3).
2. Litigation Challenging the Town’s AIP Grants
In 2003, an unincorporated association of Town residents living near the
Airport sued the FAA and Department of Transportation—but not the Town—in
the Eastern District of New York, challenging the legality of post‐1994 AIP grants
to the Town on the ground that, in the absence of a “current layout plan,” such
grants violated the AAIA, specifically 49 U.S.C. § 47107(a)(16). The litigation
concluded in an April 29, 2005 Settlement Agreement, wherein the FAA
stipulated that it would not enforce Grant Assurance 22(a)—which provides for
nondiscriminatory access to the Airport on reasonable terms—past December 31,
2014, unless the Town received additional AIP funding thereafter. The
Settlement Agreement also provided, however, that with three exceptions not
relevant here, all other grant assurances, including Grant Assurance 1(a),
requiring compliance with federal law, “shall be enforced in full.” J.A. 43.
14
3. The FAA’s Response to the 2011 Bishop Inquiry
On December 14, 2011, then–United States Representative Timothy Bishop,
whose district included the Town, submitted questions to the FAA concerning
the effect of the Settlement Agreement on the Town’s ability to adopt noise and
access restrictions at the Airport.
In an unsigned response, the FAA represented that after December 31,
2014, it would not “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 and until the award of a new AIP
grant to the Town. Id. at 391. The FAA further stated that its agreement not to
enforce meant that, unless the Town wished to remain eligible for future federal
grants, it was “not required to comply with the requirements under . . . (ANCA),
as implemented by title 14 CFR, part 161, in proposing new airport noise and
access restrictions.” Id. Counsel for the Town received a copy of this
communication from the FAA on February 29, 2012, remarking to an FAA
attorney that news reports construing the FAA’s response as relieving the Town
from ANCA compliance “certainly c[ame] as a surprise.” Id. at 389.
15
4. The Town’s Enactment of the Challenged Legislation
By 2014, the Town had concluded that its decade‐long attempt to develop
voluntary noise‐abatement procedures for aircraft operators had failed, and that
Airport noise was becoming increasingly disruptive.4 Relying on the FAA’s
response to the Bishop inquiry, the Town decided to take official action.
In the late summer of 2014, the Town began to hold public meetings and
to collect and analyze data with a view toward adopting regulations to address
Airport noise. At an October 30 Town meeting, a joint citizen‐consultant team
presented the results of a “Phase I” study on Airport operations, which indicated
that (1) helicopter noise generated the majority of complaints; (2) compliance
with voluntary procedures—at 15.3%—was low; and (3) complaints peaked
during the summer, on weekends, and in response to nighttime operations. A
Phase II study by a private firm confirmed these conclusions and prompted a
Phase III analysis of possible regulatory solutions. The results of the Phase III
analysis, reported on February 4, 2015, indicated that three restrictions would
4 In 2014, the Town received a record number of complaints about Airport
operations. Town analysis indicated that between 2013 and 2014, helicopter
operations at the Airport—considered particularly disruptive—rose by 47% from
5,728 to 8,396.
16
address the cause of more than 60% of noise complaints while affecting less than
23% of Airport operations: (1) a mandatory curfew on all aircraft traffic, (2) an
“extended” curfew for certain “noisy” aircraft, and (3) a weekly one‐round‐trip
limit on noisy aircraft. Following a period of public comment, as well as
communications with various industry constituencies, FAA officials, and
members of New York’s congressional delegation, the Town, on April 16, 2015,
codified the three recommended restrictions on the Stage 2, 3, and 4 aircraft
operations that are at issue in this case (the “Local Laws”). See Town of East
Hampton, N.Y., Code (“Town Code”) §§ 75‐38, 75‐39 (2015).
The Local Laws establish: (1) a curfew prohibiting all such aircraft from
using the Airport between 11:00 p.m. and 7:00 a.m. (the “Mandatory Curfew”);
(2) an extended curfew on “Noisy Aircraft” starting at 8:00 p.m. and continuing
through 9:00 a.m. (the “Extended Curfew”);5 and (3) a two‐operations‐per‐week
5 The Town Code defines “Noisy Aircraft” as “any airplane or rotorcraft for
which there is a published Effective Perceived Noise in Decibels (EPNdB)
approach (AP) level of 91.0 or greater.” Town Code § 75‐38(A)(4)(a). The
General Aviation Manufacturers Association, as amicus curiae, explains that this
definition is inconsistent with federal noise standards insofar as both Stage 3 and
17
(i.e., one round trip) limit on Noisy Aircrafts’ use of the Airport during the
Season (the “One‐Trip Limit”). See id. § 75‐38(B)–(C). The Local Laws address
violations through escalating fines, enforcement costs, injunctive relief, and bans
on Airport use. See id. § 75‐39(B)–(E).
The Town does not dispute that, in enacting the Local Laws, it did not
comply with ANCA’s procedural requirements. Specifically, although the laws
restrict Stage 2 aircrafts’ Airport access, the Town did not conduct the requisite
analysis set forth in 49 U.S.C. § 47524(b)(1)–(4),6 much less make such analysis
available for public comment at least 180 days before the laws took effect. Nor
did the Town seek aircraft operator or FAA approval for laws restricting Stage 3
and Stage 4 aircrafts’ Airport access, as required by 49 U.S.C. § 47524(c)(1).
C. District Court Proceedings
On April 21, 2015, five days after the Local Laws were enacted, plaintiffs
filed this declaratory and injunctive‐relief action to prohibit enforcement of §§ 75‐
Stage 4 aircraft, which satisfy the most demanding federal noise requirements,
nevertheless constitute “Noisy Aircraft” under the Local Laws.
6 See supra Part I.B.1.b note 3.
18
38 and 75‐39 of the Town Code.7 In their amended complaint, plaintiffs allege
that the Local Laws (1) violate the ADA, AAIA, ANCA, and these statutes’
implementing regulations, and, thus, are preempted under the Supremacy
Clause; and (2) constitute an unlawful restraint on interstate commerce in
violation of the Commerce Clause, see U.S. Const. art. I, § 8, cl. 3.
On April 29, 2015, plaintiffs moved for a temporary restraining order,
relying exclusively on the preemption prong of their claim. They argued that the
Local Laws violate (1) ANCA, see 49 U.S.C. § 47524, insofar as the Town failed to
comply with that statute’s procedural requirements for the adoption of local
noise and access restrictions affecting Stage 2 and Stage 3 aircraft; (2) the AAIA,
see id. § 47107, insofar as the Local Laws fail to comply with three of the Town’s
7 On April 27, 2015, plaintiffs moved pursuant to Fed. R. Civ. P. 42 to consolidate
this action with another one that some of them had filed against the FAA in
January 2015, seeking a declaratory judgment that (1) the FAA is statutorily
obligated to ensure Town compliance with grant assurances until September 25,
2021; and (2) the FAA’s 2012 response to Rep. Bishop erroneously interpreted a
settlement agreement to imply that the Town had no legal obligation to comply
with certain grant assurances, or ANCA itself, after 2014. See Compl. at 25,
Friends of the E. Hampton Airport, Inc. v. FAA, No. 2:15‐CV‐441 (JS) (E.D.N.Y. Jan.
29, 2015), ECF No. 1. The district court reserved judgment on the motion, which
plaintiffs subsequently withdrew, and the action has been stayed pending this
appeal.
19
2001 grant assurances; and (3) the ADA, see id. § 41713(b), because they are
unreasonable.
The district court conducted a hearing on May 18, 2015, after which, with
the parties’ consent, it decided to treat the motion as a request for a preliminary
injunction. The Town agreed to delay enforcement of the challenged laws until
the court ruled on the motion.8
On June 26, 2015, the district court preliminarily enjoined the Town’s
enforcement of its One‐Trip Limit law, but declined to enjoin enforcement of the
8 The FAA also appeared at the hearing, seeking further time to consider whether
to take a position on the merits of the case. At that time, FAA counsel
maintained that the Town’s characterization of the agency’s response to Rep.
Bishop as a “legal interpretation” was “disingenuous.” J.A. 470. Counsel
maintained that the FAA was only responding to a hypothetical and not waiving
its right to enforce its own regulations. See id. at 470–71 (referencing
contemporaneous email from FAA staff stating that news reports of its response
to Rep. Bishop indicated that the response “is likely being misunderstood”).
Insofar as the Town also cited a February 27, 2015 meeting with FAA
representatives to support its arguments, FAA counsel stated that the agency had
specifically advised the Town that it would be a “listening‐only” meeting, at
which the FAA would not give advice or render a legal opinion. Id. at 480.
We give these statements no weight because the FAA did not thereafter file any
papers with or appear again in the district court, nor has it participated in any
way in these cross appeals.
20
Mandatory and Extended Curfew laws. In so ruling, the court observed, first,
that neither the AAIA nor ANCA created a private right of action, and plaintiffs
could not rely on the Supremacy Clause as an independent source of such an
action.9 Nevertheless, the district court concluded that plaintiffs were entitled to
invoke equity jurisdiction to enjoin the challenged laws to the extent the exercise
of that jurisdiction was not explicitly or implicitly prohibited by Congress. The
court located congressional intent to foreclose equitable enforcement of the
AAIA in that statute’s comprehensive administrative enforcement scheme. But
“nothing in the text or structure” of ANCA supported a similar conclusion as to
that statute. Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton, 152 F.
Supp. 3d at 105. Accordingly, the district court ruled that plaintiffs could invoke
its inherent equity jurisdiction to bring a preemption claim based on ANCA, but
not on the AAIA.
9 Plaintiffs do not challenge these conclusions on appeal and, thus, we have no
reason to address them.
21
Second, the district court found that, absent a preliminary injunction, the
Local Laws would cause plaintiffs to suffer irreparable harm.10
Third, the district court concluded that plaintiffs’ preemption claim was
likely to succeed on the merits with respect to the One‐Trip Limit law, but not
the Mandatory and Extended Curfew laws. In reaching that conclusion, the
district court reasoned that ANCA did not necessarily preempt local laws
enacted in violation of its procedures because the statute’s enforcement provision
mandated only the loss of eligibility for further federal funding and for
imposition of certain charges.11 Thus, an ANCA violation did not defeat the
10 The Town does not challenge this finding on appeal and, thus, we have no
reason to review it.
11 On this point, the district court stated as follows:
[U]nder Section 47526 of ANCA, entitled, “Limitations for
noncomplying airport noise and access restrictions,” the only
consequences for failing to comply with ANCA’s review program
are that the “airport may not—(1) receive money under [the AAIA];
or (2) impose a passenger facility charge under [49 U.S.C. § 40117].”
49 U.S.C. § 47524. This provision raises an obvious question. If
Congress intended to preempt all airport proprietors from enacting
noise regulations without first complying with ANCA, why would it
also include an enforcement provision mandating the loss of
22
ADA’s “proprietor exception” to preemption, and a municipal proprietor’s
restrictions on airport access remained permissible to the extent they were
“reasonable, non‐arbitrary and non‐discriminatory.” Id. at 109.12 On the record
presented, the district court determined that the Mandatory and Extended
Curfew laws satisfied that standard, but that the One‐Trip Limit law did not
because it had a “drastic” effect on plaintiffs’ businesses, and there was “no
indication that a less restrictive measure would not also satisfactorily alleviate
the Airport’s noise problem.” Id. at 111–12.
The parties timely filed these interlocutory cross appeals, which we have
jurisdiction to review pursuant to 28 U.S.C. § 1292(a)(1).
eligibility for federal funding and the ability to impose passenger
facility charges? The logical answer is that Congress intended to use
grant and passenger facility charge restrictions to encourage, but not
require, compliance with ANCA.
Id. at 108–09 (brackets in original).
12 The district court offered “no opinion on whether the FAA has authority to
enjoin the Local Laws on the basis that the Airport is still federally obligated and
therefore would need to comply with ANCA’s procedural requirements.” Id. at
109 n.10 (citing 49 U.S.C. § 47533 (stating that ANCA does not affect Secretary of
Transportation’s authority to seek and obtain appropriate legal remedies,
“including injunctive relief”)).
23
II. Discussion
A. Standard of Review
When, as here, a preliminary injunction “will affect government action
taken in the public interest pursuant to a statute or regulatory scheme,” the
moving party must demonstrate (1) irreparable harm absent injunctive relief,
(2) a likelihood of success on the merits, and (3) public interest weighing in favor
of granting the injunction. Red Earth LLC v. United States, 657 F.3d 138, 143 (2d
Cir. 2011) (citations and internal quotation marks omitted). Although we review
a district court’s decision to grant or deny a preliminary injunction for abuse of
discretion, see Oneida Nation of N.Y. v. Cuomo, 645 F.3d 154, 164 (2d Cir. 2011), we
must assess de novo whether the court “proceeded on the basis of an erroneous
view of the applicable law,” Chevron Corp. v. Naranjo, 667 F.3d 232, 239 (2d Cir.
2012); see Drake v. Lab. Corp. of Am. Holdings, 458 F.3d 48, 56 (2d Cir. 2006)
(reviewing Federal Aviation Act preemption de novo); U.S. D.I.D. Corp. v.
Windstream Commc’ns, Inc., 775 F.3d 128, 134 (2d Cir. 2014) (reviewing
jurisdiction de novo).
24
B. The Town’s Challenge to Equity Jurisdiction
The Town contends that the district court erred in concluding that
plaintiffs could invoke equity jurisdiction to enjoin the challenged laws as
preempted by ANCA. On de novo review, we identify no error.
1. The Doctrine of Ex parte Young Supports Equity Jurisdiction in
this Case
The Supreme Court has “long recognized” that where “individual[s]
claim[] federal law immunizes [them] from state regulation, the court may issue
an injunction upon finding the state regulatory actions preempted.” Armstrong v.
Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015). The principle is most often
associated with Ex parte Young, 209 U.S. 123, 155–63 (1908), which held that the
Eleventh Amendment does not bar federal courts from enjoining state officials
from taking official action claimed to violate federal law. Since then, the
Supreme Court has consistently recognized federal jurisdiction over declaratory‐
and injunctive‐relief actions to prohibit the enforcement of state or municipal
orders alleged to violate federal law. See, e.g., Verizon Md., Inc. v. Pub. Serv.
Comm’n of Md., 535 U.S. 635, 645–46 (2002) (authorizing suit by
telecommunications carriers asserting federal preemption of state regulatory
25
order); Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 388 (2000) (enjoining
state statute barring certain foreign transactions in face of federal statute
imposing conflicting sanctions); City of Burbank v. Lockheed Air Terminal Inc., 411
U.S. at 638–40 (upholding injunction barring municipal aircraft curfews as
subject to federal preemption). Our own court has followed suit. See, e.g., Air
Transp. Ass’n of Am., Inc. v. Cuomo, 520 F.3d 218, 221–22 (2d Cir. 2008) (granting
airline trade organization declaratory and injunctive relief against preempted
state regulatory statute); United States v. State of New York, 708 F.2d 92, 94 (2d Cir.
1983) (relying on “equitable power” recognized in Ex parte Young to uphold
preliminary injunction against nighttime ban on airport use).
In such circumstances, a plaintiff does not ask equity to create a remedy
not authorized by the underlying law. Rather, it generally invokes equity
preemptively to assert a defense that would be available to it in a state or local
enforcement action. See, e.g., Virginia Office for Prot. & Advocacy v. Stewart, 563
U.S. 247, 262 (2011) (Kennedy, J., concurring) (invoking Ex parte Young involves
“nothing more than the pre‐emptive assertion in equity of a defense that would
otherwise have been available in the State’s enforcement proceedings at law”);
26
Fleet Bank, Nat’l Ass’n v. Burke, 160 F.3d 883, 888 (2d Cir. 1998) (noting that it is
“beyond dispute that federal courts have jurisdiction over suits” that “seek[]
injunctive relief from state regulation, on the ground that such regulation is pre‐
empted by a federal statute which, by virtue of the Supremacy Clause of the
Constitution, must prevail” (emphasis in original) (quoting Shaw v. Delta Air
Lines, Inc., 463 U.S. 85, 96 n.14 (1983))). A party is not required to pursue
“arguably illegal activity . . . or expose itself to criminal liability before bringing
suit to challenge” a statute alleged to violate federal law. Knife Rights, Inc. v.
Vance, 802 F.3d 377, 385 (2d Cir. 2015) (citations omitted).
Plaintiffs, who are here threatened with escalating fines and other
sanctions under the Local Laws, thus seek to enjoin enforcement on the ground
that the laws were enacted in violation of ANCA’s procedural prerequisites for
local limits on airport noise and access. Such a claim falls squarely within federal
equity jurisdiction as recognized in Ex parte Young and its progeny.
2. ANCA Does Not Limit Equity Jurisdiction
A federal court’s equity power to enjoin unlawful state or local action may,
nevertheless, be limited by statute. See Armstrong v. Exceptional Child Ctr., Inc.,
27
135 S. Ct. at 1385; Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 73–74 (1996). The
Town does not—indeed, cannot—argue that ANCA expressly precludes actions
in equity relying on its statutory requirements. Instead, the Town relies on
Armstrong to urge us to recognize ANCA’s implicit foreclosure of equitable relief.
The argument is not persuasive.
In Armstrong, the Supreme Court construed a different statute—part of the
the Medicaid Act—implicitly to preclude healthcare providers from invoking
equity to enjoin state officials from reimbursing medical service providers at
rates lower than the federal statute required. The Court located Congress’s
intent to foreclose such equitable relief in two aspects of the statute. First, federal
statutory authority to withhold Medicaid funding was the “sole remedy”
Congress provided for a state’s failure to comply with Medicaid requirements.
Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. at 1385 (citing 42 U.S.C.
§ 1396c); see id. (recognizing that “‘express provision of one method of enforcing
a substantive rule suggests that Congress intended to preclude others’” (quoting
Alexander v. Sandoval, 532 U.S. 275, 290 (2001))). Second, even if the existence of a
provision authorizing the Secretary of Health and Human Services to enforce the
28
statute by withholding funds “might not, by itself, preclude the availability of
equitable relief,” it did so “when combined with the judicially unadministrable
nature of [the statutory] text.” Id. (emphasis in original); see id. (“It is difficult to
imagine a requirement broader and less specific than § 30(A)’s mandate that state
plans provide for payments that are ‘consistent with efficiency, economy, and
quality of care,’ all the while ‘safeguard[ing] against unnecessary utilization of
. . . care and services.’” (citation omitted)). In sum, “[t]he sheer complexity
associated with enforcing § 30(A), coupled with the express provision of an
administrative remedy, § 1396c, shows that the Medicaid Act precludes private
enforcement of § 30(A) in the courts.” Id.
ANCA cannot be analogized to the Medicaid statute in either of the two
ways prompting jurisdictional concern in Armstrong. First, as to the
identification of an exclusive remedy, there is no textual basis to conclude that
the loss of federal funding is the only consequence for violating ANCA. The
Town highlights—as the district court did—49 U.S.C. § 47526, which states that
an airport may not receive AIP grants or collect passenger facility charges
“[u]nless the Secretary of Transportation is satisfied” that, insofar as the airport
29
imposes any noise or access restrictions, those regulations comply with the
statute. The Town’s assertion that this is the sole available remedy for violating
ANCA, however, is defeated by § 47533, which states that, “[e]xcept as provided
by section 47524 of this title, this subchapter does not affect . . . the authority of
the Secretary of Transportation to seek and obtain legal remedies the Secretary
considers appropriate, including injunctive relief.” 49 U.S.C. § 47533(3). As
already noted, § 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;13 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).
Thus, § 47533 confirms that Congress did not intend § 47526 to be the only means
of enforcing ANCA’s procedural requirements. The FAA can employ any legal
or equitable remedy necessary to prevent airports from enacting or enforcing
restrictions on (1) Stage 2 aircraft without utilizing the § 47524(b) process, and on
13 But see City of Naples Airport Auth. v. FAA, 409 F.3d at 434–35 (holding that FAA
retains power under AAIA to withhold AIP funding for airport that imposes
unreasonable Stage 2 aircraft restrictions).
30
(2) Stage 3 and 4 aircraft without securing either the § 47524(c) consent of all
airport operators or the FAA’s own approval. 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. See Air Transp. Ass’n of Am., Inc. v. Cuomo, 520 F.3d at 222
(pre‐enforcement challenge to pre‐empted state law presented no “barriers to
justiciability”) (citing Ex parte Young, 209 U.S. at 145–47).
Further support for the conclusion that Congress did not intend for
funding ineligibility to be the sole means of enforcing the § 47524(b) and (c)
requirements can be located in the twenty‐year compliance assurance that airport
proprietors must give in return for AIP grants. Such grants, unlike Medicaid
funding, involve one‐time transfers. Thus, if, as the Town argues, the sole
remedy for a proprietor’s failure to comply with the § 47524 requirements for
local laws is the loss of eligibility for future funding, the proprietor could (1) give
a twenty‐year assurance of compliance to obtain an AIP grant on one day and,
31
(2) on the next day, promulgate non‐ANCA‐compliant laws, relinquishing
eligibility for future grants. We cannot conclude that, in those circumstances,
Congress intended to foreclose legal or equitable actions to enforce either the
statutorily mandated assurances or ANCA’s procedural prerequisites for local
legislation. See generally Corley v. United States, 556 U.S. 303, 314 (2009) (stating
that courts must construe statute “so that no part will be inoperative or
superfluous, void or insignificant” (internal quotation marks omitted)). Indeed,
§ 47533 makes plain that Congress did not so intend.
Second, unlike the Medicaid claim at issue in Armstrong, plaintiffs’ ANCA‐
based challenge to the Town’s Local Laws would not require application of a
judicially unadministrable standard. In urging otherwise, the Town relies on 49
U.S.C. § 47524(c), the statutory section detailing various factors that can inform
an FAA decision to approve local noise restrictions on Stage 3 aircraft. The Town
argues that ANCA compliance is, thus, so much a matter of agency discretion as
to signal Congress’s intent that the FAA alone—not private individuals—should
enforce the statute’s terms. The argument fails because § 47524(c) sets forth a
simple rule: that airports seeking to impose noise restrictions on Stage 3 aircraft
32
must obtain either the consent of all aircraft operators or FAA approval. It is
“difficult to imagine” more straightforward requirements. Armstrong v.
Exceptional Child Ctr., Inc., 135 S. Ct. at 1385. A federal court can evaluate the
Town’s compliance with these obligations without engaging in the sort of
“judgment‐laden” review that the Supreme Court in Armstrong concluded
evinced Congress’s intent not to permit private enforcement of § 30A of the
Medicaid Act.14 Id. Indeed, at oral argument before this court, the Town
acknowledged that this case does not implicate “the same kind of judicial
administrability problem” as Armstrong. See Oral Argument, June 20, 2016, at
1:26:39–45.
In sum, because (1) the denial of eligibility for federal funding is not the
exclusive remedy for an airport proprietor’s failure to comply with ANCA’s
14 While Stage 2 aircraft operations—addressed in § 47524(b)—were phased out
by December 31, 2015, the same conclusion obtains with respect to that
subsection. Under § 47524(b), airports must, more than 180 days before a
restriction becomes effective, publish the proposed restriction and make
available for public comment an analysis of the restriction’s costs and benefits,
including alternative measures that were considered. As with § 47524(c), judicial
administration of subsection (b) is simple: if no such notice has been published
for the requisite period, the proposed Stage 2 restriction violates ANCA.
33
procedural requirements, and (2) those requirements plainly are judicially
administrable, we conclude that Congress did not intend implicitly to foreclose
plaintiffs from invoking equitable jurisdiction to challenge the Town’s
enforcement of Local Laws enacted in alleged violation of ANCA. Accordingly,
the Town’s jurisdictional challenge is without merit.
C. Plaintiffs’ ANCA‐Based Preemption Claim
Plaintiffs fault the district court’s conclusion that they are unlikely to
succeed on the merits of their preemption challenge to the Local Laws. They
argue that ANCA’s procedural requirements for local restrictions on airport
access apply to all public airport proprietors regardless of their federal funding
status. Thus, plaintiffs maintain, the Town’s disavowal of future federal funding
cannot insulate the Local Laws from ANCA’s procedural requirements. And
enactment of the Local Laws without such procedures cannot be deemed
reasonable so as to support a proprietor exception to federal preemption under
the ADA. We agree and, therefore, conclude that plaintiffs are entitled to a
preliminary injunction barring enforcement of all three Local Laws.
34
1. ANCA’s Text and Context Establish Procedural Requirements
for Local Noise and Access Restrictions Applicable to All
Public Airport Proprietors
In considering de novo whether ANCA’s § 47524 procedural requirements
for local noise and access restriction laws apply to all public airport proprietors,
or only to those receiving federal funding as the Town contends, we begin with
the statute’s text because “we assume that the ordinary meaning of the statutory
language accurately expresses the legislative purpose.” Marx v. Gen. Revenue
Corp., 133 S. Ct. 1166, 1172 (2013) (brackets and internal quotation marks
omitted). In deciding “whether the language at issue has a plain and
unambiguous meaning with regard to the particular dispute in the case,” Roberts
v. Sea‐Land Servs., Inc., 132 S. Ct. 1350, 1356 (2012) (internal quotation marks
omitted), we consider “the language itself, the specific context in which that
language is used, and the broader context of the statute as a whole,” Greathouse v.
JHS Sec. Inc., 784 F.3d 105, 111 (2d Cir. 2015) (internal quotation marks omitted).
“If the statutory language is unambiguous and the statutory scheme is coherent
and consistent . . . the inquiry ceases.” Kingdomware Techs., Inc. v. United States,
136 S. Ct. 1969, 1976 (2016) (internal quotation marks omitted). That is the case
with respect to the relevant provisions of § 47524, which employ comprehensive
35
and unmistakably limiting language in affording airport proprietors some
authority to regulate noise.
Subsection (b) states that a local “airport noise or access restriction may
include a restriction on the operation of stage 2 aircraft . . . only if the airport
operator publishes the proposed restriction and prepares and makes available for
public comment at least 180 days before the effective date of the proposed
restriction” the analysis outlined therein. 49 U.S.C. § 47524(b) (emphasis added).
Similarly, subsection (c) states that “an airport noise or access restriction on the
operation of stage 3 aircraft . . . may become effective only if the restriction has
been agreed to by the airport proprietor and all aircraft operators or has been
submitted to and approved by the [FAA] after an airport or aircraft operator’s
request for approval.” Id. § 47524(c)(1) (emphasis added). The phrase “only if”
is unambiguously limiting, identifying procedures that airport proprietors must
follow in order to impose any noise or access restrictions on air operations.15 At
15 This language reflects the statute as it was re‐codified in 1994, when Congress
published a reorganized version of Title 49 “without substantive change.”
Section 1(a), Pub. L. No. 103‐272, 108 Stat. 745 (1994). As originally enacted, the
statute provided that “[n]o airport noise or access restriction shall include a
36
the same time, no statutory language cabins these procedural requirements to
proprietors receiving or maintaining eligibility for federal funds. 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.
restriction on operations of Stage 2 aircraft, unless the airport operator” complied
with the statute’s notice‐and‐comment requirements. ANCA § 9304(c), Pub. L.
No. 101‐508, 104 Stat. 1388‐381 (1990) (emphasis added). It further established
that “[n]o airport noise or access restriction on the operation of a Stage 3
aircraft . . . shall be effective unless it has been agreed to by the airport proprietor
and all aircraft operators or has been submitted to and approved by the [FAA]
pursuant to an airport or aircraft operator’s request for approval.” Id. § 9304(b),
104 Stat. 1388‐380–81 (emphasis added). The Supreme Court has “often
observed” that similar language is unambiguously mandatory. Ross v. Blake, 136
S. Ct. 1850, 1856 (2016) (construing as mandatory language in 42 U.S.C. § 1997e(a)
stating that “[n]o action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted” (emphasis added)).
Because Congress made clear that the 1994 recodification of § 47524 did not effect
any “substantive change”—a representation consistent with the absence of any
material difference between the two versions of the statute—the same mandatory
conclusion obtains notwithstanding the stylistic revisions. Northwest, Inc. v.
Ginsberg, 134 S. Ct. 1422, 1429 (2014) (internal quotation marks omitted). In any
event, we “will not . . . infer[] that Congress, in revising and consolidating the
laws, intended to change their effect unless such intention is clearly expressed.”
Finley v. United States, 490 U.S. 545, 554 (1989). There is no such clear expression
here.
37
See City of Naples Airport Auth. v. FAA, 409 F.3d at 433–34 (stating that airports
“must comply” with § 47524(b) to impose Stage 2 aircraft restrictions, and that
“subsection (c)’s requirement of FAA approval is not tied to grants; grants or not,
no airport operator can impose a Stage 3 restriction unless the FAA gives its
approval”).
Statutory context further compels this construction. First, the only textual
limitation on the aforementioned procedural requirements is that referenced in
§ 47524(d), a “grandfather” provision that generally exempts local noise
restrictions existing prior to ANCA’s effective date.
Second, § 47527 shifts liability for “noise damages” from local airport
proprietors to the federal government when “a taking has occurred as a direct
result of the [FAA’s] disapproval” of a proposed restriction. 49 U.S.C. § 47527.
Insofar as the proprietor exception to federal preemption rests on an airport
operator’s potential liability for—and, thus, right to mitigate—noise damage “by
restricting the use of his airport,” Concorde I, 558 F.2d at 83 (citing Griggs v.
Allegheny Cty., 369 U.S. at 84), the federal government’s assumption of that
liability not only undermines the rationale for the exception, but also offsets the
38
extent to which ANCA constrains local authority. Moreover, no language limits
this federal acceptance of liability to airports whose proprietors have received or
are eligible for AIP grants. Thus, the general assumption of liability under
§ 47527 reinforces the conclusion that Congress intended for the requirements of
§ 47524(b) and (c) to apply generally to all proprietors wishing to impose noise or
access restrictions on Stage 2, 3, or 4 aircraft at public airports.
Third, § 47533(3) places no limits—and certainly no funding eligibility
condition—on the FAA’s statutory authority to enforce the § 47524(b) and (c)
procedural requirements.
The Town nevertheless urges us to construe § 47524 in light of § 47526 and
to conclude from that funding ineligibility provision that Congress’s intent was
to “encourage, but not require, compliance” with the former’s procedures.
Town’s Br. 34 (citing Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton,
152 F. Supp. 3d at 109). We are not persuaded. As explained supra at Part III.B.2,
§ 47526 provides for loss of funding eligibility as a consequence of
noncompliance with § 47524 procedures. Nothing in § 47526 signals that funding
39
ineligibility is the only consequence of such a procedural violation.16 The same
conclusion obtains with respect to the funding ineligibility effected by § 47524(e)
with particular reference to § 47524(c) violations.
In sum, ANCA’s text and context unambiguously indicate Congress’s
intent for the § 47524 procedural mandates to apply to all public airport
proprietors regardless of their funding eligibility.
16 We do not think that the title of § 47526 (“Limitations for noncomplying airport
noise and access restrictions”) can fairly be read in the definitive (i.e., “[The]
Limitations for . . .”) to support the Town’s urged conclusion. Precedent
instructs that a statute’s title “cannot limit the plain meaning of the text,”
Pennsylvania Dep’t of Corrs. v. Yeskey, 524 U.S. 206, 212 (1998), and that rule
applies with particular force here where the quoted title was not part of the
statute as originally enacted in 1990. Rather, it was added as part of the non‐
substantive 1994 recodification. Compare ANCA § 9307, 104 Stat. 1388‐382, with
49 U.S.C. § 47526. “Congress made it clear” that this recodification “did not
effect any ‘substantive change.’” Northwest, Inc. v. Ginsberg, 134 S. Ct. at 1429.
Indeed, the statute’s original title, “Limitation on Airport Improvement Program
Revenue,” is as susceptible to the indefinite as the definite article, i.e., “[A]
Limitation on . . . “ and, thus, cannot be construed to manifest Congress’s intent
that federal funding ineligibility be the sole consequence of a § 47524(b) or (c)
violation.
40
2. Congress’s Intent for ANCA Procedures To Apply
Comprehensively and Mandatorily Is Confirmed by Statutory
Findings, Legislative History, and Implementing Regulations
Even if text and context did not speak unambiguously to the question,
statutory findings, legislative history, and implementing regulations would
confirm the conclusion that § 47524(b) and (c) apply comprehensively and
mandatorily to all public airport proprietors.
Congress promulgated ANCA based on findings that “community noise
concerns have led to uncoordinated and inconsistent restrictions on aviation that
could impede the national air transportation system” and, therefore, “noise
policy must be carried out at the national level.” 49 U.S.C. § 47521(2)–(3)
(emphasis added). Such findings, which are “particularly useful” in determining
congressional intent, Dole v. United Steelworkers of Am., 494 U.S. 26, 36 (1990);
accord WLNY‐TV, Inc. v. FCC, 163 F.3d 137, 142 (2d Cir. 1998)—and which
themselves speak in mandatory terms—undermine the Town’s argument that
Congress intended for the § 47524(b) and (c) procedures to apply only to noise
and access restrictions at some public airports, i.e., those whose proprietors
wished to maintain federal funding eligibility. It was by mandating local
restriction procedures for all public airport proprietors that Congress could
41
prevent “uncoordinated and inconsistent restrictions” “at the national level,”
while still allowing “local interest in aviation noise management [to] be
considered in determining the national interest.” 49 U.S.C. § 47521(1)–(4).
Congress’s recognition that “revenues controlled by the [federal] government
can help resolve noise problems and carry with them a responsibility to the
national airport system,” id. § 47521(6), does not undermine this conclusion.
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. Nor are we persuaded by the
Town’s contention that the reference to “noise problems” in the quoted excerpt
from § 47521(6) refers to noise restrictions, as opposed to problems created by
airport noise. In any event, the finding states only that such revenue control “can
help resolve” those problems, which comports with a view of funding eligibility
as a means—but not the only means—of executing ANCA’s policy objectives. Id.
(emphasis added).
That conclusion is consistent, moreover, with ANCA’s legislative history.
ANCA was adopted after Congress determined that voluntary financial and
42
legal incentives established by the Aviation Safety and Noise Abatement Act of
1979, Pub. L. No. 96‐193, 94 Stat. 50 (recodified at 49 U.S.C. §§ 47501–47510), had
proved insufficient to secure airport conformity to federal aviation policy
respecting noise. Notwithstanding these incentives, and the federal funding
scheme established by the AAIA in 1982, Congress perceived that a “patchwork
quilt” of local noise restrictions continued to stymie the airport development
required for the nation’s aviation. See 136 Cong. Rec. S13619 (Sept. 24, 1990)
(statement of Sen. Ford).17 Thus, it was to resolve a problem that persisted
despite federal financial incentives that Congress enacted regulatory legislation
17 Senator Wendell H. Ford, the original sponsor of the legislation ultimately
enacted as ANCA, explained as follows:
No issue facing air transportation is more important than settling the
noise debate. The greatest obstacle to expanding airports and
increasing air carrier service is the opposition to aircraft noise and
not the cost of building more runways and establishing more
technologically advanced air traffic control. . . . Airports are now
telling the airlines what kind of aircraft they can fly as a method of
regulating noise. Some airports have enforced restrictions on the
type of aircraft, the number of operations and the time of day for
operations.
136 Cong. Rec. S13619 (Sept. 24, 1990).
43
permitting local noise and access restrictions at public airports “only if” the
restrictions conformed to the procedural mandates of § 47524(b) and (c).
Indeed, many of the legislators who opposed ANCA’s enactment objected
to the statute’s mandatory nature precisely because it meant that local noise
restrictions not enacted under the specified procedures would be preempted by
federal law. See, e.g., 136 Cong. Rec. S15819 (Oct. 18, 1990) (statement of Sen.
Durenberger) (“This [legislation] would have far reaching consequences for the
millions of Americans living beneath the landing and takeoff flight paths of our
Nation’s airports. In many communities, the pending aviation noise legislation
would effectively preempt existing local aviation noise controls.”); id. at S15820
(statement of Sen. Sarbanes) (“[T]his legislation has far‐reaching ramifications for
cities and towns throughout the country. Many of these communities have
already been through the long, and often painful process of developing
comprehensive noise standards for their airports . . . balancing the economic
development interests of those communities and the desire to provide a healthy
environment free of noise pollution . . . .”). This belies the suggestion that in
ANCA, Congress was, yet again, seeking only to give incentives for compliance
44
by those seeking federal funding. Rather, it confirms mandated procedures
applicable to all proprietors seeking to impose noise or access restrictions at
public airports.
Finally, even if text, context, findings, and history did not speak so plainly,
any ambiguity would be resolved by the FAA’s interpretation of § 47524 to
mandate procedural compliance regardless of funding status. See Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 844 (1984) (“We have long
recognized that considerable weight should be accorded to an executive
department’s construction of a statutory scheme it is entrusted to administer.”).
The FAA’s Part 161 regulations state that “notice, review, and approval
requirements set forth in this part apply to all airports imposing noise or access
restrictions” affecting Stage 2 or Stage 3 airport operations. 14 C.F.R. §§ 161.3(c),
161.5 (emphasis added). They admit no exception for airports not maintaining
federal funding eligibility. Rather, they employ comprehensive and mandatory
language. See id. § 161.205(a) (“Each airport operator proposing a noise or access
restriction on Stage 2 aircraft operations shall prepare the [specified analysis] and
make it available for public comment . . . .” (emphases added)), § 161.303(a)
45
(“Each airport operator or aircraft operator . . . proposing a Stage 3 restriction
shall provide public notice and an opportunity for public comment, as prescribed
in this subpart, before submitting the restriction to the FAA for review and
approval.” (emphases added)). Further, the FAA regulations state, in no
uncertain terms, that “the procedures to terminate eligibility for airport grant
funds and authority to impose or collect passenger facility charges for an airport
operator’s failure to comply with [ANCA] . . . 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.” Id. § 161.501(a) (emphasis added).
In sum, the statutory findings, legislative history, and implementing
regulations accord with what we have identified as the plain meaning of
ANCA’s text. We therefore construe § 47524(b) and (c) to mandate procedures
for the enactment of local noise and access restrictions by any public airport
operator, regardless of federal funding status. Because these procedures are
mandatory and comprehensive, we further conclude that local laws not enacted
in compliance with them (which the Town concedes the Local Laws challenged
in this case were not) are federally preempted. See Hillman v. Maretta, 133 S. Ct.
46
1943, 1949–50 (2013) (“State law is pre‐empted to the extent of any conflict with a
federal statute.” (internal quotation marks omitted)); In re Tribune Co. Fraudulent
Conveyance Litig., 818 F.3d 98, 109–10 (2d Cir. 2016) (recognizing that such conflict
occurs when, inter alia, “state law stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress” (internal
quotation marks omitted)).
Accordingly, plaintiffs are likely to succeed on their preemption claim and
are entitled to an injunction prohibiting the Town’s enforcement of each of the
three challenged Local Laws.
3. National Helicopter Warrants No Different Preemption
Conclusion
National Helicopter Corp. of America v. City of New York, 137 F.3d 81 (2d Cir.
1998), relied on by the Town as well as the district court, does not warrant a
different conclusion on preemption.
In that case, the parties cross appealed the partial grant and partial denial
of an injunction barring New York City from restricting operations at
Manhattan’s East 34th Street Heliport. Plaintiff helicopter operator “National”
argued that the “regulation of airports is a field preempted by federal law,” id. at
47
84, while the City maintained that its restrictions represented a lawful exercise of
its power as the Heliport’s proprietor, id. at 88.18
18 Preliminary to ruling, the court provided a general outline of how the
proprietor exception fits within the ADA’s general preemption of local laws
pertaining to airline operations:
Congress preempted state and local regulations “related
to a price, route or service of an air carrier” when it
passed § 1305(a) of the Airline Deregulation Act, now
recodified at 49 U.S.C. § 41713(b)(1) (1994). Cf. id.
§ 40101, et seq. (1994) (Federal Aviation Act); id. § 44715
(1994) (Noise Control Act); id. § 47521, et seq. (1994)
(Airport Noise and Capacity Act) (acts implying
preemption of noise regulation at airports).
In enacting the aviation legislation, Congress stated that
the preemptive effect of § 1305(a) did not extend to acts
passed by state and local agencies in the course of
“carrying out [their] proprietary powers and rights.” Id.
§ 41713(b)(3). Under this “cooperative scheme,”
Congress has consciously delegated to state and
municipal proprietors the authority to adopt rational
regulations with respect to the permissible level of noise
created by aircraft using their airports in order to
protect the local population. See Concorde I, 558 F.2d at
83–84 (discussing the 1968 amendment to Federal
Aviation Act and Noise Control Act legislative history
in which Congress specifically reserved the rights of
proprietors to establish regulations limiting the
permissible level of noise at their airports); S. Rep. No.
96–52, at 13 (1980), reprinted in 1980 U.S.C.C.A.N. 89, 101
48
The Town urges us to conclude from the fact that National Helicopter found
certain of the challenged restrictions to fall within the proprietor exception—
despite the City’s apparent failure to comply with ANCA procedures—that this
court has necessarily, if not explicitly, decided that ANCA procedures do not
(proclaiming that the Aviation Safety and Noise
Abatement Act was not “intended to alter the respective
legal responsibilities of the Federal Government and
local airport proprietors for the control of aviation
noise”) . . . .
Hence, federal courts have recognized federal
preemption over the regulation of aircraft and airspace,
subject to a complementary though more “limited role
for local airport proprietors in regulating noise levels at
their airports.” City and County of San Francisco v. FAA,
942 F.2d 1391, 1394 (9th Cir. 1991). Under this plan of
divided authority, we have held that the proprietor
exception allows municipalities to promulgate
“reasonable, nonarbitrary and non‐discriminatory”
regulations of noise and other environmental concerns
at the local level. Concorde I, 558 F.2d at 84 (regulations
of noise levels); see also Western Air Lines, Inc. v. Port
Auth. of N.Y. & N.J., 658 F. Supp. 952, 957 (S.D.N.Y.
1986) (permissible regulations of noise and other
environmental concerns), aff’d, 817 F.2d 222 (2d Cir.
1987).
Id. at 88–89.
49
limit the scope of the ADA’s proprietor exception to federal preemption, thereby
foreclosing a contrary decision in this case. The argument is unpersuasive for
several reasons.
First, “a sub silentio holding is not binding precedent.” Getty Petroleum
Corp. v. Bartco Corp., 858 F.2d 103, 113 (2d Cir. 1988) (internal quotation marks
omitted); see also United States v. Hardwick, 523 F.3d 94, 101 n.5 (2d Cir. 2008)
(explaining that government concession in prior appeal that certain evidence
should not be considered in evaluating sufficiency did not bind later panel
because first panel “did not independently analyze whether this was the proper
course”); United States v. Johnson, 256 F.3d 895, 916 (9th Cir. 2001) (en banc)
(reasoning that court is not bound by earlier “statement of law . . . uttered in
passing without due consideration of the alternatives, or where it is merely a
prelude to another legal issue that commands the panel’s full attention”).
Second, National Helicopter is distinguishable from this case in that the
court there understood National “not [to] dispute the viability of the proprietor
exception.” National Helicopter Corp. of Am. v. City of New York, 137 F.3d at 89.
Rather, it understood National to argue that the exception did not apply because
50
the City’s challenged actions were taken under its police power rather than its
proprietary authority. See id. In resolving that dispute favorably to the City, this
court did not address whether and to what extent ANCA’s procedural
requirements cabined the reasonable exercise of a municipality’s proprietary
authority over airport noise, much less did it decide whether local restrictions
imposed in the absence of ANCA procedures were federally preempted. Indeed,
the court mentioned ANCA only in passing, at the end of a string cite comparing
the ADA with other “acts implying preemption of noise regulation at airports.”
Id. at 88.19
19 We need not ourselves decide whether National’s briefing might have been
understood differently. See generally Plaintiff‐Appellee‐Cross‐Appellant Br. 40,
National Helicopter Corp. of Am. v. City of New York, 137 F.3d 81 (2d Cir. 1998)
(arguing for affirmance of injunction on alternative ground that ANCA
“preempts restrictions on Stage 2 and Stage 3 aircraft that were imposed without
following ANCA’s required procedures and cost‐benefit calculations”). We
consider only whether the panel in National Helicopter in fact decided whether
ANCA’s procedural requirements inform the proprietor exception to ADA
preemption. We conclude that National Helicopter did not decide that question.
In any event, consistent with our practice in such circumstances, we have
circulated this opinion to all active members of this court prior to filing. See
Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58, 67 & n.9 (2d Cir.
2009).
51
What the court did acknowledge, however, was that the role preserved for
local airport proprietors in regulating noise levels is a “limited” one. Id. To the
extent local restrictions must be “reasonable, nonarbitrary, and non‐
discriminatory,” id. (internal quotation marks omitted), nothing in National
Helicopter suggests that an airport proprietor can satisfy these criteria if he fails to
comply with mandated procedures of federal law—such as ANCA—for the
enactment of such restrictions. To the contrary, actions taken in violation of legal
mandates are, by their nature, unreasonable and arbitrary. See generally Austin v.
U.S. Parole Comm’n, 448 F.3d 197, 200 (2d Cir. 2006) (noting that committing
“procedural error” effects result that is “unreasonable . . . and therefore . . . in
violation of law”); Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012)
(observing that factual findings made without following regulations constitute
error of law); Sierra Club v. Van Antwerp, 526 F.3d 1353, 1368 (11th Cir. 2008)
(“[A]n agency’s failure to follow its own regulations and procedures is arbitrary
and capricious.”).
Accordingly, we conclude that National Helicopter does not support the
conclusion that plaintiffs are unlikely to succeed on their preemption claim.
52
4. A Preemption Conclusion Does Not Transform Federal
Aviation Law Contrary to Congress’s Intent
The Town further argues that construing ANCA to preempt the
challenged Local Laws would effectively “invalidat[e] the proprietor exception”
to preemption expressly reserved by Congress in the ADA. Town’s Reply Br. 28.
Our ruling does no such thing.
In § 47524, Congress itself cabins airport operators’ proprietary authority
by mandating certain procedures for the enactment of local noise and access
restrictions. By 1990, Congress had concluded that, at the same time that “local
interest in aviation noise management shall be considered in determining the
national interest,” 49 U.S.C. § 47521(4), the exercise of proprietary authority
could not be allowed to produce a patchwork of “uncoordinated and
inconsistent” airport restrictions that impede the national transportation system,
136 Cong. Rec. S13619 (Sept. 24, 1990) (statement of Sen. Ford). Thus, ANCA’s
procedural requirements are properly understood to refine what can constitute a
“reasonable” exercise of the proprietary authority reserved by the ADA. See
National Helicopter Corp. of Am. v. City of New York, 137 F.3d at 88–89 (recognizing
ADA to reserve “a complementary though more limited role for airport
53
proprietors in regulating noise levels at their airports” by promulgating
“reasonable, nonarbitrary, and nondiscriminatory” regulations for “noise and
other environmental concerns” (internal citations and quotation marks omitted)).
Local laws not enacted in compliance with ANCA procedures cannot claim to be
a reasonable exercise of such authority and, therefore, the federal preemption of
such laws does not invalidate reserved proprietary authority contrary to
Congress’s intent.
Nor does such a preemption conclusion “dramatically enlarge the FAA’s
role in a manner that Congress never intended.” Town’s Reply Br. 31. Indeed,
the Town has failed to demonstrate that events since ANCA’s enactment have
belied the FAA’s prediction that the statute would not impose substantial
burdens on small public airports. See Notice and Approval of Airport Noise and
Access Restrictions, 56 Fed. Reg. 8644, 8661–62 (Feb. 28, 1992) (codified at 14
C.F.R. pt. 161). Insofar as the Town asserts that the reason only one proprietor
has applied for FAA approval to impose noise restrictions on Stage 3 aircraft is
because of the “agency’s . . . vigorous opposition to any airport use restrictions,”
J.A. 240 (emphasis in original), the assertion is conclusory and hardly
54
demonstrates that, if more applications were filed, the agency would arbitrarily
withhold consent, or that courts would fail to correct any abuse. No more
convincing is the Town’s assertion that concerns of time and cost have resulted
in only one airport successfully imposing restrictions on certain aircraft
operations. See id. To the extent the process is inherently burdensome, that
decision was, in the first instance, Congress’s, and not a reason for courts to
excuse a non‐complying party from preemption. To the extent a party considers
itself unduly burdened by FAA implementation of ANCA’s procedures, its
remedy is an action to curb agency excess, not relief from preemption.
Thus, we reject the Town’s contention that deeming local laws enacted in
violation of ANCA’s procedural mandates in § 47524(b) and (c) to be preempted
would radically transform federal aviation law by invalidating the proprietor
exception reserved in the ADA. Rather, we conclude that ANCA establishes
what Congress thought were necessary procedures for a reasonable exercise of
proprietary authority within the national aviation system.
The Local Laws at issue not having been enacted according to the
procedures mandated in 49 U.S.C. § 47524(b) and (c), the Town cannot claim the
55
protection of the proprietor exception from federal preemption. Because
plaintiffs are thus likely to succeed on their preemption claim, they are entitled to
a preliminary injunction barring enforcement of all three challenged Local
Laws.20 Accordingly, we affirm the challenged order to the extent it granted an
injunction as to the One‐Trip Limit Law, we vacate the order to the extent it
denied an injunction as to the Mandatory and Extended Curfew Laws, and we
remand the case for entry of a preliminary injunction as to all three laws and for
further proceedings consistent with this opinion.
20 In this appeal, the Town does not contest the other factors required for a
preliminary injunction.
56
III. Conclusion
To summarize, we conclude as follows:
1. The district court properly exercised federal equity jurisdiction to
hear plaintiffs’ claim that enforcement of the challenged Local
Laws is barred by preemptive federal aviation law.
2. Federal law mandating procedures for the enactment of local laws
restricting noise and access to public airports, see 49 U.S.C.
§ 47524(b) and (c), applies to public airports without regard to
their eligibility for federal funding.
3. Because it is undisputed that the defendant Town enacted the
Local Laws at issue without complying with § 47524 procedures,
those Local Laws are federally preempted, and plaintiffs are
entitled to a preliminary injunction barring their enforcement.
Therefore, the challenged district court order is AFFIRMED IN PART and
VACATED IN PART, and the case is REMANDED to the district court for it to
enter a preliminary injunction barring enforcement of all three laws and for
further proceedings consistent with this opinion.
57