WESLEY, Circuit Judge:
Plaintiff-Appellant Goodspeed Airport LLC appeals from a judgment of the United States District Court for the District of Connecticut (Kravitz, J.), entered after a bench trial, in favor of Defendants-Appellees East Haddam Inland Wetlands and Watercourses Commission and James Ventres. Goodspeed Airport sought declaratory and injunctive relief establishing and protecting its right to cut certain trees on its property, part of which is protected wetlands. Under Connecticut law and municipal regulations, a person must apply for permission to undertake activities affecting wetlands. We write to clarify what
The facts of this case, as well as the statutory and regulatory context, are discussed at length in the district court's thorough and well-reasoned opinion. Goodspeed Airport, LLC v. East Haddam Inland Wetland & Watercourses Comm'n (Goodspeed), 681 F.Supp.2d 182 (D.Conn. 2010). We discuss only those aspects of the case necessary to an understanding of the issues presented on appeal.
Appellant Goodspeed Airport (the "Airport") is a small, state-licensed, privately owned and operated commercial airport in East Haddam, Connecticut. Appellee James Ventres is the enforcement officer for Appellee East Haddam Inland Wetlands and Watercourses Commission ("IWWC").
The IWWC is a municipal regulatory body established pursuant to the Connecticut Inland Wetlands and Watercourses Act ("IWWA"). The IWWA declares that it is "the public policy of [Connecticut] to require municipal regulation of activities affecting the wetlands and watercourses within the territorial limits of the [state's] various municipalities or districts." Conn. Gen.Stat. § 22a-42(a). The IWWC may issue cease and desist orders and bring actions to enforce the act's provisions. Persons within its jurisdiction are required to apply to the IWWC for permission before undertaking activities affecting protected land.
The Airport's property is partly composed of protected wetlands. This protected land contains trees and other vegetation which the Airport wishes to cut down. In January 2001, the IWWC issued the Airport a Cease and Desist Order (the "Order") instructing it to refrain from "all regulated activity within seventy-five feet of inland/wetlands and watercourses (regulated areas) on your property[.]" The Order cited as its authority certain regulations of the Town of East Haddam, adopted and promulgated under Connecticut General Statute Section 22a. This Order was later withdrawn, but Appellees continue to assert that the Airport is obliged to obtain a permit before cutting the trees.
The Airport contends — and Appellees do not contest — that some of the trees it wishes to cut down fall within the definition of "obstructions to air navigation" under 14 C.F.R. Part 77 ("FAA Regulations"). The FAA Regulations establish standards for identifying these obstructions, defining an imaginary surface in the shape of a bowl around regulated runways. Id. § 77.23. Objects breaching this imaginary surface are declared to be obstructions.
The Airport offers two theories of preemption. First, it argues that the state and local statutes, regulations and actions pursuant to IWWA and CEPA are impermissible intrusions upon a field of regulation which Congress (via the Federal Aviation Act of 1958 ("Aviation Act") and the FAA Regulations promulgated thereunder) has indicated its intent to entirely occupy. Second, the Airport argues for express preemption pursuant to language in the Airline Deregulation Act of 1978 ("ADA").
The Airport sought a declaratory judgment establishing its right to cut down the trees without applying to the IWWC for a permit. It also sought to enjoin the defendants from bringing any action under state or local law to prohibit or otherwise regulate the removal of any trees constituting obstructions to air navigation.
Federal preemption of state law can be express or implied. See New York SMSA Ltd. P'ship v. Town of Clarkstown, 612 F.3d 97, 104 (2d Cir.2010) (per curiam).
The Airport argues that, once a tree becomes an "obstruction" to air navigation under the FAA Regulations, the local permit process becomes ipso facto inapplicable to the Airport's efforts to trim or remove that tree. However, it does not claim that the permit process is entirely preempted or invalidated by federal law, merely that it cannot operate so as to interfere with the removal of obstructions to air navigation.
Generally, facial challenges must demonstrate that there is no possible set of conditions under which the challenged state permit process could be constitutional. See, e.g., Cal. Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 580, 107 S.Ct. 1419, 94 L.Ed.2d 577 (1987). However, this showing need not be made when a plaintiff claims that "what is preempted [ ] is the permitting process itself, not the length or outcome of that process in particular cases." Green Mountain R.R. Corp. v. Vermont, 404 F.3d 638, 644 (2d Cir.2005).
On their face, the IWWA, CEPA, and the local permit process established pursuant thereto do not address issues of air safety. Nor do they prohibit removal of the trees; they merely impose a permit requirement on their removal. A proper examination of the Airport's claim therefore requires us to consider whether federal law occupies the field of air safety, and if it does, whether the state laws and regulations intrude upon that field.
"The United States Government has exclusive sovereignty of airspace of the United States." 49 U.S.C. § 40103(a)(1). The district court took this language, as well as the overall statutory and regulatory scheme initiated by the Aviation Act, as evidence of "a clear congressional intent to occupy the entire field of aviation safety to the exclusion of state law." Goodspeed, 681 F.Supp.2d at 201.
In Air Transport Ass'n of America, Inc. v. Cuomo (ATA), 520 F.3d 218, 225 (2d Cir.2008), this Court observed that several of our sister circuits, and several district courts within our own circuit, have concluded that Congress intended to occupy the entire field of air safety and thereby preempt state regulation of that field. ATA examined evidence of Congressional "intent to centralize air safety authority and the comprehensiveness of [ ] regulations pursuant to that authority," under both the Aviation Act and the ADA. Id. However, as the district court was careful to observe, ATA stopped short of formally holding that Congress intended to occupy the field of air safety. See Goodspeed, 681 F.Supp.2d at 199. Today we join our sister circuits.
But concluding that Congress intended to occupy the field of air safety does not end our task. As the district court recognized, the inquiry is twofold;
The district court correctly distinguished a recent case, also from the District of Connecticut, which held that the Aviation Act impliedly preempts certain town regulatory actions.
The local regulatory action at issue in Tweed constitutes a much more direct intrusion of local authority on the preempted field of air safety than do the regulatory actions challenged here. Unlike Tweed-New Haven Airport, Goodspeed Airport is not licensed by the FAA; it is not federally funded, and no federal agency has approved or mandated the removal of the trees from its property. Indeed, in its response to a formal inquiry from the district court in this case, the federal government disclaimed any authority to order the trees' removal.
Moreover, IWWA and CEPA are environmental laws that do not refer to aviation or airports. Neither statute prohibits the trimming or removal of any tree located in a protected area. Instead, the Wetlands Act requires only that Appellant obtain a permit before removing the trees in question. See Conn. Gen.Stat. § 22a-42a. Thus, Appellant's contention that IWWA and CEPA have the impermissible "effect" of "prohibiting the removal of the obstructions" under the Aviation Act, Appellant's Brief at 20, is unsupported. "[P]art of the preempted field is defined by reference to the purpose of the state law in question. . . another part of the field is defined by the state law's actual effect[.]" English v. Gen. Elec. Co., 496 U.S. 72, 84, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). The state laws at issue here do not enter the scope of the preempted field in either their purpose or their effect.
Appellant also argues that both IWWA and CEPA are expressly preempted by language in the Aviation Act, as modified by the ADA, codified at 49 U.S.C. § 41713(b)(1):
In ATA, this Court found the New York Passenger Bill of Rights expressly preempted by § 41713(b)(1): "We hold that requiring airlines to provide food, water, electricity, and restrooms to passengers during lengthy ground delays does relate to the service of an air carrier and therefore falls within the express terms of the ADA's preemption provision." 520 F.3d at 223. Today, by contrast, we hold that the ADA does not preempt applicable state and local environmental and land use statutes and regulations that impose permit requirements whose impact on air carriers, if any, is remote. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 390, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (cautioning that, while even indirect impact on air carriers may be preempted, state action with "tenuous, remote, or peripheral" effects on air carriers is not preempted) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n. 21, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)).
The state and local statutes, regulations and actions at issue here are neither field-preempted by the language of the Aviation Act, nor expressly preempted by the ADA. Accordingly, Appellant is obliged to observe the appropriate state procedures.
Although we hold that Congress has indicated its intent to occupy the entire field of aviation safety, the generally applicable state laws and regulations imposing permit requirements on land use challenged here do not, on the facts before us, invade that preempted field. Further, the impact on air carriers of the laws and regulations at issue here, if any, is too remote to be expressly preempted under the terms of the Airline Deregulation Act. Accordingly, the district court's judgment of January 13, 2010 is hereby