                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-21-2004

Khodara Env Inc v. Blakey
Precedential or Non-Precedential: Precedential

Docket No. 02-4038




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Recommended Citation
"Khodara Env Inc v. Blakey" (2004). 2004 Decisions. Paper 433.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/433


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PRECEDENTIAL                             COUNTY, PENNSYLVANIA;
                                      PINECREEK TOWNSHIP; FEDERAL
   UNITED STATES COURT OF               AVIATION ADMINISTRATION;
          APPEALS
    FOR THE THIRD CIRCUIT                      **MARION BLAKEY

                                              (D.C. No. 01-cv-00018E)
            No. 02-4038
                                           Khodara Environmental, Inc.,

KHODARA ENVIRONM ENTAL, INC.,                      Appellant
 GENERAL PARTNER, ON BEHALF              *(Amended per Clerk's Order dated
 OF EAGLE ENVIRONMENTAL, L.P.                      01/16/03)
                                        **(Amended per Court's Order dated
                v.                                 08/11/03)

  *MARION BLAKEY; FEDERAL
  AVIATION ADMINISTRATION;
    CLEARFIELD-JEFFERSON               ON APPEAL FROM THE UNITED
      COUNTIES REGIONAL               STATES DISTRICT COURT FOR THE
AIRPORT AUTHORITY; DONALD R.              WESTERN DISTRICT OF
    JOHNSON; PAUL SEKULA;                     PENNSYLVANIA
WILLIAM MIKSICH; FREDERICK G.
     MURRAY; TIM MORGAN;                  (Dist. Court No. 97-cv-00093E
ROBERT E. REITZ; HENRY DEIBLE;                    and 01-cv-00018E)
       PAUL MCMILLEN;                   District Court Judge: Honorable Sean
       MARK MCKINLEY;                                McLaughlin

JEFFERSON COUNTY; PINE CREEK
 TOWNSHIP (Intervenor-defendants in          Argued: October 24, 2003
              D.C.)
                                          Before: ALITO, FUENTES, and
      (D.C. No. 97-cv-00093E)                BECKER, Circuit Judges.

      LEATHERWOOD, INC.                    (Opinion Filed: July 21, 2004)

                v.                    William F. Fox, Jr., Esq. (argued)
                                      J.P. Mascaro & Sons
      THE PENNSYLVANIA                320 Godshall Drive
       DEPARTMENT OF                  Hurleysville, PA 19438
       ENVIRONMENTAL                  Attorney for Appellant
    PROTECTION; JEFFERSON
Teal Luthy Miller, Esq. (argued)                     declaratory judgment Eagle sought.
Scott R. McIntosh, Esq.
United States Department of Justice                                       I.
601 D Street N.W.
Washington, DC 20530                                         For some time now, Eagle has
Attorney for Appellee Federal                        desired to develop a solid waste disposal
Aviation Administration and Marion                   facility on land that it owns in Jefferson
Blakey                                               County. The facility, which is located
                                                     approximately 5.25 miles from the Dubois-
Robert P. Ging, Jr., Esq. (argued)                   Jefferson County Airport, was intended to
2095 Humbert Road                                    accept municipal waste primarily from out-
Confluence, PA 15424                                 of-state producers. In the early 1990s,
Attorney for Appellees Jefferson                     Eagle began to apply to the Pennsylvania
City and Township of Pine Creek                      Department of Environmental Protection
                                                     (hereinafter “DEP”) for permits that were
                                                     needed to operate the facility, and the DEP
       OPINION OF THE COURT                          issued all of the permits that were
                                                     required. See Khodara Envtl., ex rel.
                                                     Eagle Envtl. v. Beckman, 237 F.3d 186,
ALITO, Circuit Judge:                                189 & n.1 (3d Cir. 2001)(“Khodara I”).
                                                     After receiving these permits, Eagle took
       Khodara Environmental, Inc., the              steps to develop the facility, including
general partner of a company (Eagle                  obtaining engineering studies of the site,
Environmental, L.P.) that wishes to                  installing 12 groundwater monitoring
develop the “Happy Landing Landfill” in              wells, beginning work on an access road,
Jefferson County, Pennsylvania, contests             and installing a perimeter silt fence.
the District Court’s denial of its request for
a declaratory judgment that the Wendell H.                   In September 1996, however, the
Ford Aviation Investment and Reform Act              Pennsylvania Fish and Boat Commission
for the 21st Century (“the Wendell Ford              designated three tributaries near the
Act”) does not prohibit the landfill. The            landfill site as wild trout streams. As a
Federal Aviation Administration (“FAA”),             result, the DEP determined that wetlands
Jefferson County, and Pine Creek                     in and around Happy Landing Landfill
Township argue that the Wendell Ford Act             were of such an exceptional value that they
does prohibit the landfill. In addition, the         should not be filled. Shortly thereafter, the
FAA argues that Khodara and Eagle                    DEP revoked authorization to fill in any
(hereinafter collectively “Eagle”) lack              wetlands and suspended the other permits.
Article III standing and that their claim is         Eagle appealed to the Environmental
not ripe. For the reasons stated below, we           Hearing Board. While the appeal was
reverse and remand for the entry of the              pending, Eagle and the DEP entered into a

                                                 2
consent order and agreement that released         aircraft flying at low altitudes, the FAA
the bonds that Eagle had submitted in the         regulates the development of landfills near
process of obtaining one of its permits. In       airports.    It appears that the Happy
exchange, Eagle agreed not to construct or        Landing Landfill site was permitted by the
operate the landfill until that permit was        FAA regulations in effect before FARA
reinstated and the applicable bonding             was enacted, see id. at 189 n. 3, but
requirements were met. In September               Section 1220 of FARA imposed an
1998, the Environmental Hearing Board             additional restriction that applied only
issued an administrative order affirming          under very narrow circumstances.
the DEP’s suspension order. See Eagle
Envtl. L.P. v. Commonwealth of Pa. Dep’t                  Section 1220 provided in relevant
of Envtl. Protection, EHB Docket. No. 96-         part:
215-MG, 1998 WL 612838 (Pa. Hrg. Bd.
Sept. 3, 1998). This decision was affirmed                For the purpose of
by the Pennsylvania Commonwealth                          enhancing aviation safety, in
Court, see Eagle Envtl. L.P. v.                           a case in which 2 landfills
Commonwealth of Pa. Dep’t of Envtl.                       have been proposed to be
Protection, No. 2704 C.D. 1998 (Pa.                       constructed or established
Commw. Ct. 2001); App. at 122, and the                    within 6 miles of a
DEP’s suspension order became final                       commercial service airport
when the Pennsylvania Supreme Court                       with fewer than 50,000
denied further review. See Eagle Envtl.                   emplanements per year no
L.P. v. Commonwealth of Pa. Dep’t of                      person shall construct or
Envtl. Protection, 800 A.2d 934 (Pa.                      establish either landfill if an
2002); App. at 9a.                                        official of the Federal
                                                          Aviation Administration has
        In October 1996, while these state                stated in writing within the
proceedings were in progress, Congress                    3-year period ending on the
enacted the Federal A viatio n                            date of enactment of this
Reauthorization Act of 1996 (“FARA”),                     subsection that 1 of the
Pub. L. No. 104-264, 110 Stat. 3213.                      landfills would be
Section 1220 of FARA, which was drafted                   incompatible with aircraft
by two members of the House of                            operations at the airport,
Representatives from the area near the                    unless the landfill is already
Happy Landing Landfill site, was                          active on such date of
apparently “intended to single out Happy                  enactment or the airport
Landing Landfill for regulation.” See                     operator agrees to the
Khodara I, 237 F.3d at 190 n.4. Because                   construction                or
landfills tend to attract birds and because               establishment of the landfill.
birds can present a safety problem for

                                              3
49 U.S.C. § 44718(d) (amended by Pub. L.            retrospective effect. Cross-appeals were
No. 106-181, § 503(b), 114 Stat. 61, 133            taken to this Court.
(2000) (codified at 49 U.S.C. § 44718(d))).                 While these appeals were pending
Since the Dubois-Jefferson County Airport           before us, Congress enacted the Wendell
was a “commercial service airport with              Ford Act, which replaced Section 1220 of
fewer than 50,000 emplanements per year”            FARA with a new and somewhat broader
and since two landfills (Happy Landing              provision. Section 503(b) of the Wendell
Landfill and one other) had been proposed           Ford Act, 49 U.S.C. § 44718(d) provides
for construction within six miles of the            in pertinent part:
airport, Section 1220 was potentially
applicable to that airport. Moreover,                     (1) In general.–No person
according to a statement attributed to one                shall construct or establish a
of the sponsors of this provision, the                    municipal solid waste
DuBois-Jefferson County Airport was the                   landfill . . . that receives
only airport in the country to which                      putrescible waste . . . within
Section 1220 applied. See Khodara I, 237                  6 miles of a public airport
F.3d at 190 n.4.                                          that has received grants
                                                          under chapter 471 and is
        After FARA was enacted, Eagle                     primarily served by general
commenced this action, seeking, among                     a v i a t io n a i r c ra f t a nd
other things, a declaration that Section                  regularly scheduled flights
1220 was unconstitutional and that it did                 of aircraft designed for 60
not apply to the Happy Landing Landfill.                  passengers or less unless the
In March 1999, the District Court granted                 State aviation agency of the
partial summary judgment in favor of                      State in which the airport is
Eagle, holding that Section 1220 failed                   located requests that the
rational-basis review under the Equal                     Administrator of the Federal
Protection Clause. See Khodara Env’t,                     Aviation Ad ministration
Inc. v. Beckman, 91 F. Supp. 2d 827, 850-                 exempt the landfill from the
57 (W.D. Pa. 1999). Although the Court                    applicati on of this
found that the government had a legitimate                s u b s e c t io n and th e
interest in preventing aircraft bird strikes,             Administrator determines
the Court saw no rational justification for               that such exemption would
the provisions that: (1) limited the ban to               have no adverse impact on
cases where exactly two landfills had been                aviation safety.
proposed; (2) restricted the provision to
airports with fewer than 50,000 annual                    (2)     L i m i t a ti o n on
emplanements; (3) covered only                            applicability.–Paragraph (1)
commercial, and not commuter, airports;                   . . . shall not apply to the
and (4) limited the statute to purely                     construction, establishment,

                                                4
expansion, or modification                undertaken with respect to,
of, or to any other activity              a municipal solid waste
                                          landfill if the construction or
                                          establishment of the landfill
                                          was commenced on or
                                          before the date of the
                                          enactment of this
                                          subsection.

                                   49 U.S.C. § 44718(d)(1)-(2).

                                          In August 2000, the FAA
                                   promulgated FAA Advisory Circular
                                   150/5200-34 to provide “guidance on
                                   complying” with the Act.         For our
                                   purposes, the Circular’s most important
                                   portions are its definitions of the terms
                                   “construction” and “establishment.” The
                                   Circular states:

                                          a. Construct a municipal
                                          solid waste landfill means
                                          excavate or grade land, or
                                          raise structures, to prepare a
                                          municipal solid waste
                                          landfill as permitted by the
                                          appropriate regulatory or
                                          permitting authority.

                                          b. Establish a municipal
                                          solid w aste land fill
                                          (MSWLF) means receive
                                          the first load or putrescible
                                          waste on site for placement
                                          in a prepared municipal
                                          solid waste landfill.

                                   FAA Advisory Circular 150/5200-34,
                                   Appendix 1 (a)-(b) (emphasis in original).



                               5
       Because of the legal change                ripeness arguments but concluded that
effected by the Act, we vacated the portion       Eagle had not commenced the construction
of the District Court’s opinion that had          or establishment of the landfill prior to the
held that Section 1220 of FARA was                enactment of the Wendell Ford Act. On
unconstitutional, and we remanded to              Eagle’s claim that it was exempt because
allow Eagle to file an amended complaint          the landfill would not adversely affect
addressing the new Act. Khodara I, 237            aviation safety, the Court held that the
F.3d at 195, 198.                                 claim was not ripe and therefore dismissed
                                                  it without prejudice. The Court also
        On remand, Eagle filed an amended         granted summary judgment against Eagle
complaint seeking a declaratory judgment          on its constitutional claims. Eagle then
to the effect that Section 503(b) of the          filed this appeal and argues that its actions
Wendell Ford Act does not apply to Happy          at Happy Landing Landfill bring it within
Landing Landfill because, prior to the            the grandfather clause.1
enactment of that Act, which became law
on April 5, 2000, Eagle had commenced                                  II.
construction and establishment of the
landfill within the meaning of Section                   We begin by considering the FAA’s
503(b)’s grandfather clause.       See 49         argument that Eagle lacks Article III
U.S.C. § 44718(d)(2). In the alternative,         standing. See Joint Stock Soc’y v. UDV
Eagle sought a declaration that it was            N. Am., Inc., 266 F.3d 164, 175 (3d Cir.
entitled to an exemption under 49 U.S.C. §        2001) (“Constitutional standing is a
44718(d)(1) because the operation of              threshold issue that we should address
Happy Landing Landfill would not have an          before examining issues of prudential
adverse impact on aviation safety. Eagle          standing and statutory interpretation.”);
also sought declarations that the Act was         Peachlum v. City of York, 333 F.3d 429,
unconstitutional in various respects.             433 (3d Cir. 2003).
Eagle, the FAA, and the other defendants
all moved for summary judgment. All of                    “Article III of the Constitution
the defendants argued that the Act                limits the federal judicial power to ‘Cases’
prohibited the development of Happy               or ‘Controversies,’ thereby entailing as an
Landing Landfill, and the FAA also argued         ‘irreducible minimum’ that there be (1) an
that Eagle’s Wendell Ford Act claims were         injury in fact, (2) a causal relationship
barred for lack of standing and ripeness.

       The District Court granted summary                1
                                                           Eagle does not seek review
judgment for the defendants. On Eagle’s
                                                  regarding its claim for an exemption
claim that it fell within the grandfather
                                                  under 49 U.S.C. § 44718(d)(1) or its
clause in 49 U.S.C. § 44718(d)(2), the
                                                  constitutional claims.
Court rejected the FAA’s standing and

                                              6
between the injury and the challenged               permitted by the Wendell Ford Act,
conduct, and (3) a likelihood that the              whereas the defendants take the position
injury will be redressed by a favorable             that the Act precludes development of the
decision.” United Food and Commercial               landfill. In addition, the dispute is of
Workers Union Local 751 v. Brown                    “sufficient immediacy and reality to
Group, Inc., 517 U.S. 544, 551(1996). See           warrant the issuance of a declaratory
also, e.g., Bennett v. Spear, 520 U.S. 154,         judgment.” Although the FAA has not yet
162 (1997); Northeastern Fla. Chapter               taken action against Eagle, the FAA’s
Associated Gen. Contractors of Am. v.               position regarding the application of the
Jacksonville, 508 U.S. 656 (1993). These            Act to the Happy Landing Landfill site is
“requirements ensure that plaintiffs have a         clear. And while the DEP’s revocation or
‘personal stake’ or ‘interest’ in the               suspension of Eagle’s permits presents an
outcome of the proceedings, ‘sufficient to          independent obstacle to the development
warrant . . . [their] invocation of federal-        of the facility, it is apparent that it would
court jurisdiction and to justify exercise of       be inordinately expensive and impractical
the court’s remedial powers on . . .[their]         from a business standpoint for Eagle to
behalf.’” Joint Stock Soc’y, 266 F.3d at            attempt to cure that problem until the
175 (quoting Wheeler v. Travelers Ins.              Wendell Ford Act issue is resolved. If it is
Co., 22 F.3d 534, 537-38 (3d Cir. 1994)).           settled that the Wendell Ford Act does not
                                                    apply, Eagle asserts (and no party
        A plaintiff seeking a declaratory           disagrees) that Pennsylvania law would
judgment must possess constitutional                permit Eagle to try to satisfy the
standing but need not have suffered “the            Pennsylvania DEP by redesigning the
full harm expected.” The St. Thomas–St.             Happy Landing Landfill facility, and Eagle
John Hotel & Tourism Ass’n v. Virgin                intends to pursue this course if it is
Islands, 218 F.3d 232, 240 (3d Cir. 2000).          successful in this case.          It is also
In such a case, we have said, a plaintiff has       noteworthy that no party has suggested
Article III standing if “there is a                 that there is any way in which Eagle could
substantial controversy, between parties            have attacked both of the obstacles that it
having adverse legal interests, of sufficient       faces in a single proceeding. Under these
immediacy and reality to warrant the                particular circumstances, we believe that
issuance of a declaratory judgment.” Id.            the standing requirements for a declaratory
                                                    judgment case are met.
       In the present case, these
requirements are met. There certainly is “a                In arguing that Eagle’s claim does
substantial controversy” between Eagle              not meet Article III requirements, the FAA
and the defendants, and each side has               focuses on the second and third prongs of
interests that are adverse to the other.            the generally applicable test for
Eagle wishes to develop the Happy                   constitutional standing, i.e., causation and
Landing Landfill and claims that this is            redressability.    The FAA begins by

                                                7
identifying Eagle’s injury as “the                 way, both the causation and redressability
prohibition of its proposed landfill” and          prongs are plainly satisfied.
concedes that this injury “likely would
satisfy the injury-fact-requirement,” but                 Second, even if Eagle’s injury is
the FAA maintains that “[t]he Wendell              defined more narrowly as its inability to
Ford Act’s prohibition is not the direct           operate the landfill, the FAA’s argument
cause of Eagle’s inability to construct and        hinges on the proposition that the
operate the landfill.” FAA’s Br. at 13-14.         “causation” prong of the test for
“Rather,” the FAA writes, “the DEP’s               constitutional standing demands that the
decision to revoke a portion of Eagle’s            challenged conduct be a but-for cause of
water obstruction and encroachment                 the plaintiff’s injury. This proposition,
permit and suspend its remaining permits           however, is doubtful. Article III standing
prevents Eagle from constructing the               demands “a causal relationship,” but
landfill and does so regardless of whether         neither the Supreme Court nor our Court
the Wendell Ford Act applies.” Id. at 14.          has ever held that but-for causation is
Similarly, the FAA maintains that “it is           always needed. Moreover, it is well
purely speculative whether Eagle’s injury          recognized that but-for causation is
would be redressed by the declaration that         problematic in precisely the situation
it seeks” because even if the declaration          present here, i.e., where an effect is
were granted, the lack of state permits            “causally over-determined,” i.e., where
would block the development of the                 there are multiple sufficient causes. Price
landfill. Id.                                      Waterhouse v. Hopkins, 490 U.S. 228, 241
                                                   (1989) (opinion of Brennan, J.). See W.
        There are two ways in which this           Page Keeton et al., Prosser and Keeton on
argument can be answered. First, under             the Law of Torts § 41 at 266-67 (5th ed.
the circumstances present here, where              1984); Richard W. Wright, Causation in
Eagle faces two, independent regulatory            Tort Law, 73 C AL. L. R EV. 1735, 1775-76
obstacles that can only be attacked in             (1985). A classic example in tort law is
separate proceedings, it makes sense to            the hypothetical case in which a person is
conceptualize Eagle’s injury, not as “the          simultaneously hit with two lethal gun
prohibition of its proposed landfill” in the       shots fired at the same time by two
general sense, but as the prohibition of its       hunters. But-for causation leads to the
landfill by the challenged application of          absurd conclusion that neither shot was the
the Wendell Ford Act. Cf. Northeastern             cause of the victim’s demise, and
Fla. Chapter Associated Gen. Contractors           accordingly “[i]f two causes concur to
of Am. v. Jacksonville, 508 U.S. at 664-66         bring about an event and either one of
(injury in fact under the circumstances is         them, operating alone would have been
not the ultimate denial of contract but the        sufficient to cause the identical result,
inability to compete on equal terms).              some other test [i.e., other than but-for
When Eagle’s injury is understood in this          causation] is needed.” Prosser and Keeton

                                               8
on the Law of Torts, supra, § 41 at 266.           of the obstacles that it faces would run
                                                   afoul of the c a se - or- c ontrove rsy
        The FAA’s argument in this case            requirement.
resembles the argument that neither of the
hunters in the hypothetical mentioned                      In our view, however, Article III
above was the cause of the victim’s death.         does not dictate such an absurd result.
The FAA’s argument leads logically to the          Under the particular circumstances here,
conclusion that any litigation commenced           where Eagle faces two, independent
by Eagle to remove either of the two               obstacles that are potentially removable
obstacles that prevent it from developing          but that cannot be challenged in a single
the Happy Landing Landfill site – the              litigation, we believe that Article III allows
application of the Wendell Ford Act and            Eagle to challenge each obstacle
the lack of permits – would fail Article III       separately.
standards. Suppose, for example, that
Eagle redesigned its facility but was                       The FAA contends, however, that
unsuccessful in obtaining the needed state         Article III demands that Eagle address its
permits and then sought judicial review in         state-law problems before litigating the
the Pennsylvania courts. If those courts           federal-law issues presented in this case,
adhered to the same standing requirements          but the FAA provides no convincing
that the FAA argues apply in federal court,        explanation for its view. The FAA does
the very same argument that the FAA now            not argue that the supremacy of federal
advances could be made with respect to             over state law demands that state-law
Eagle’s state-court litigation. It could be        obstacles be removed first, and we see no
argued that “[the denial of the state              basis for such an argument. Nor does the
permits] is not the direct cause of Eagle’s        FAA contend that it is more efficient in
inability to construct and operate the             this case for the state issues to be tackled
landfill. Rather, the [application of the          first – and, if anything, the opposite seems
Wendell Ford Act] prevents Eagle from              to be the case. Rather, the FAA’s only
constructing the landfill and does so              explanation for its position that Eagle must
regardless of whether the [the permits are         resolve the state issues first is that “the
granted].” FAA’s Br. at 14. Likewise, it           permitting process is logically prior to the
could be argued that “it is purely                 construction and operation of a landfill.”
speculative whether Eagle’s injury would           FAA’s Br. at 16. The meaning of this
be redressed by the [a state-court decision        statement is not clear, but if the FAA is
that it is entitled to the permits]” because       arguing that the question whether Eagle is
even if such a decision were issued, the           entitled to permits under state law “is
Wendell Ford Act would block the                   logically prior” to the question whether the
development of the landfill. Id. In short,         We ndell Ford Act prohib its the
under the logic of the FAA’s argument,             development of the Happy Landing
any attempt by Eagle to attack either one          Landfill facility, we do not follow the

                                               9
FAA’s logic. It does not seem to us that              posture to be able to present their positions
logic assigns priority to either the federal          vigorously,” whether the facts of the case
or state issues.                                      are “sufficiently developed to provide the
                                                      court with enough information on which to
       In sum, under the particular factual           decide the matter conclusively,” and
circumstances of this case, Eagle has                 whether a party is “genuinely aggrieved so
Article III standing.                                 as to avoid expenditure of judicial
                                                      resources on matters which have caused
                     III.                             harm to no one.” Peachlum, 333 F.3d at
                                                      433-34. In determining whether a case is
        The FAA also argues that Eagle’s              ripe, we generally examine: “(1) ‘the
claim is unripe because Eagle “has not                fitness of the issues for judicial decision,’
shown that it will be able to obtain state            and (2) ‘the hardship to the parties of
permits to construct the proposed landfill,”          withholding court consideration.’” Id. at
“has never sought a formal determination              434 (citing Abbott Labs., 387 U.S. at 149);
from the FAA that [the Wendell Ford] Act              see also Nextel Communications of the
prohibits its landfill,” and has not                  Mid-Atlantic, Inc. v. City of M argate, 305
requested the state aviation agency to                F.3d 188, 193 (3d Cir. 2002).
petition the FAA under 49 U.S.C. §
44718(d)(1) for an exemption for the                         In declaratory judgment cases, we
Happy Landing Landfill facility. FAA’s                apply a somewhat “refined” test “because
Br. at 16, 19.                                        declaratory judgments are typically sought
                                                      before a completed injury has occurred.”
        The ripeness doctrine serves to               Pic-A-State Pa. Inc. v. Reno, 76 F.3d
“determine whether a party has brought an             1294, 1298 (3d Cir. 1996). Thus, when
action prematurely and counsels abstention            “determining whether to engage in pre-
until such time as a dispute is sufficiently          enforcement review of a statute in a
concrete to satisfy the constitutional and            declaratory judgment action,” we look to
prudential requirements of the doctrine.”             “(1) the adversity of the parties’ interests,
Peachlum v. City of York, 333 F.3d 429,               (2) the conclusiveness of the judgment,
433 (3d Cir. 2003) (citing Philadelphia               and (3) the utility of the judgment.” Pic-
Federation of Teachers, Am. Fed’n of                  A-State Pa. Inc. v. Reno, 76 F.3d 1294,
Teachers, Local 3, AFL-CIO v. Ridge, 150              1298 (3d Cir. 1996) (citations omitted);
F.3d 319, 323 (3d Cir. 1998) and Abbott               see also Step-Saver Data Systems, Inc. v.
Labs. v. Gardner, 387 U.S. 136, 148-49                Wyse Technology, 912 F.2d 643, 646-47
(1967), overruled on other grounds,                   (3d Cir. 1990).
Califano v. Sanders, 430 U.S. 99, 105                        In considering whether Eagle’s
(1977)). Various considerations “underpin             Wendell Ford Act claim is ripe, two
the ripeness doctrine,” including whether             decisions of other courts of appeals are
the parties are in a “sufficiently adversarial        instructive. In Gary D. Peake Excavating,

                                                 10
Inc. v. Town Board of the Town of                  permit were granted, Local
Hancock, 93 F.3d 68 (2d Cir. 1996), a              Law No. 1 would still
town enacted a local law prohibiting the           p r e v en t [ h i m ] f ro m
operation of dumps. Id. at 70-71. This             operating [his] disposal
local law was enacted after the New York           facility.” Reviewing the
State Department of Environmental                  ordinance at this time will
Conservation (the “DEC”) promulgated               allow Peake to make an
new regulations that required a permit for         informed decision as to
construction and demolition (“C & D”)              whether he should expend
debris landfills. Id. at 70. Peake, who            additional money to obtain a
owned land in the town and wanted to               DEC permit to operate a
operate a C & D debris landfill, and his           C&D landfill. If we uphold
company sued the town, claiming that the           the ordinance, Peake will be
local law was unconstitutional. Id. at 71.         able to cut his losses by
The town argued that the plaintiffs’ claim         halting his efforts to obtain
was not ripe because they were not using           a DEC permit; if we
the property for a debris landfill and             invalidate the ordinance,
because they could not use the property for        Peake can continue with the
such a facility without first obtaining a          DEC permitting process,
state permit. Id. at 72. The Second Circuit        knowing that obtaining the
disagreed. Id. Observing that “[t]he issues        DEC permit would not be in
presented by the Plaintiffs’ claims are fit        vain. In contrast, if judicial
for judicial review because they are purely        review were withheld until
legal and may be decided without further           Peake obtained a DEC
factual development,” the Court continued:         permit, Peake would have to
                                                   choose between (1)
       Moreover, the Plaintiffs                    abandoning his plans to
       would suffer substantial                    construct the C&D landfill
       hardship if judicial review                 in deference to a potentially
       were withheld.        Peake                 unconstitutional ordinance
       already has spent                           and (2) expending
       “considerable sums” of                      "considerable sums" of
       money in an effort to obtain                money to obtain a DEC
       a permit from the DEC to                    p ermit a nd there afte r
       operate a C&D landfill. He                  commencing an action
       claims that he is “reluctant                challenging the ordinance.
       to spend more money to                      We see no reason why
       o b t a i n the ad diti o n a l             Peake should have to
       information required by [the                expend substantial sums of
       DEC] because, even if a                     money before challenging

                                              11
       the constitutionality of the                 any hardship by the postponement of
       ordinance.     Nor should                    judicial action.” Id. at 289. The Court
       Peake be required to subject                 concluded that the first factor weighed
       himself to the threat of the                 heavily in favor of a finding of ripeness
       criminal penalties imposed                   because the issues presented were “purely
       by Law No. 1 in order to                     legal.” Id. The Court then detailed why
       challenge the ordinance.                     delay would “work a substantial hardship
                                                    to Triple G.” Id. “Postponing judicial
Id.                                                 action,” the Court wrote, “would force an
                                                    unwarranted dilemma upon Triple G.” Id.
        The case of Triple G Landfills, Inc.        at 290. It would be required either to
v. Board of Commissioners of Fountain               “scuttle its development plans altogether in
County, 977 F.3d 287 (7th Cir. 1992), is            deference to a potentially invalid county
also closely on point. There, Triple G              regulation, or complete the expensive and
wanted to build a landfill in Fountain              time-consuming state permit process,
County, Indiana, but county residents               submit a permit application that Fountain
objected, and eventually the county                 County is certain to reject, and then, after
adopted an ordinance that obligated a party         incurring substantial sunk costs, bring a
wishing to construct a landfill to obtain a         facial challenge to the ordinance.” Id.
county permit in addition to the state-             The Court concluded that this dilemma
issued permit that was already required.            was unwarranted because delay would
Id. at 288. The stringent requirements of           result in no “countervailing benefit–either
the new county ordinance effectively                to the judicial process or the public
barred Triple G from constructing its               interest.” Id. Even though there was a
landfill, and Triple G brought suit,                chance that the state would “turn down
challenging the constitutionality of the            Triple G’s permit application,” the Court
ordinance.                                          held, this was not “sufficient to defeat
                                                    ripeness.” Id.
       Before reaching the merits of the
case, the Seventh Circuit held that Triple                  We are persuaded by the analysis of
G’s claims were ripe even though Triple G           the Second and Seventh Circuits in these
had not yet applied for either a state or a         cases, and for similar reasons, we hold that
county permit. Triple G Landfills, Inc.,            Eagle’s claim is ripe. Looking to the
977 F.3d at 288-90. The Court began by              factors enumerated in Pic-a-State Pa. Inc.,
stating that “[i]nquiries into ripeness             76 F.3d at 1298, we note, first, that “the
generally address two factors: first,               adversity of the parties’ interests” is
whether the relevant issues are sufficiently        evident and is not disputed by the FAA.
focused so as to permit judicial resolution         Second, it is apparent that a judgment in
without further factual development; and,           this case will conclusively establish
second, whether the parties would suffer            whether Happy Landing Landfill falls

                                               12
within the Wendell Ford Act’s grandfather                                IV.
clause. Third, a judgment on the merits
will have significant practical value for                   We now consider the merits of
Eagle. Eagle will then be in a position to           Eagle’s claim that the Happy Landing
know whether it should undertake the                 Landfill facility falls within the Wendell
expensive project of redesigning the site            Ford Act’s grandfather clause.         The
plan and trying once again to obtain state           grandfather clause applies, Eagle argues,
permits.                                             because it commenced the “construction”
                                                     and “establishment” of the landfill facility
        In addition to these factors, we note        before the enactment of the Wendell Ford
that here, as in Gary D. Peake Excavating,           Act.
Inc. and Triple G, delay will not lead to                                 A.
further development of relevant facts. The
facts that are pertinent to the question of                  The parties’ first point of
the application of the grandfather clause –          disagreement is whether the Wendell Ford
regarding what Eagle did on the Happy                Act’s grandfather clause is ambiguous.
Landing Landfill site prior to the critical          According to Eagle, the clause is clear and,
date – are simple and undisputed. The crux           as a result, the District Court erred in
of the issue on the merits – i.e., what the          looking beyond the statutory language and
grandfather clause mea ns by the                     in relying on the FAA Advisory Circular.
“commence[ment]” of “the construction
or establishment” of a landfill (49 U.S.C.                  When interpreting a statute, we
§ 44718(d)(2)) – is purely legal. We will            begin with the statutory language itself,
not be in any better position to answer this         and “[i]t is well established that ‘when the
question in the future than we are now.              statute’s language is plain, the sole
Nor do we see any other advantage in                 function of the courts – at least where the
delay. Although the FAA argues that                  disposition required by the text is not
Eagle should be required to ask the FAA              absurd – is to enforce it according to its
for a formal determination regarding the             terms.” Lamie v. U.S. Trustee, 124 S.Ct.
application of the grandfather clause, the           1023, 1030 (2004) (citations omitted).
FAA’s position on that issue is perfectly
clear. And as for the FAA’s argument that                   Here, we agree with the District
Eagle should be required to ask the state            Court that the grandfather clause is
aviation agency to petition the FAA for an           ambiguous. As noted, the clause states
exemption under 49 U.S.C. § 44718(d)(1),             that Section 503(b) of the W endell Ford
the futility of such a request is evident.           Act, 49 U.S.C. § 44718(d)(1), does not
We consequently hold that Eagle’s claim is           apply to the “construction, establishment,
ripe.                                                expansion, or modification of, or to any
                                                     other activity undertaken with respect to, a
                                                     municipal solid waste landfill, if the

                                                13
construction or establishment of the                   District Court noted and as the record
landfill was commenced on or before the                bears out, that process is often complex
date of enactment” of the Act. 49 U.S.C.               and lengthy, requiring the acquisition of
§ 44718(d)(2) (emphasis added). Since the              land, the satisfaction of legal requirements,
word       “commenced” modifies both                   many different stages of work on the site,
“construction” and “establishment,” we                 the solicitation of business, and the
must ascertain what Congress meant by                  beginning of actual operations. One could
c o m m e n c i n g c o n s t ru c t i o n an d        plausibly contend that the commencement
commencing establishment.                              of the establishment of a landfill takes
                                                       place very early in this process. Along
           Eagle’s argument that this language         these lines, it could be argued that a party
is clear has surface appeal because the                “start[s]” “the act of bringing [a landfill]
r e l e v an t t e r m s – “ c o mmenc e d ,”          into existence” “with permanence in view”
“construction,” and “establishment” – are              when it takes the very first step of the
common and, in many contexts, their                    process that it intends to bring about that
meaning is entirely plain. As used in the              result. Thus, if a party buys land for use as
grandfather clause, however, the meaning               a landfill, that could be viewed as the
of these terms is ambiguous.                           commencement of the establishment of the
                                                       landfill. At the other extreme, however,
        In ordinary speech, “to commence”              one could plausibly argue that the
means “to enter upon,” to “begin,” to                  commencement of the establishment of a
“start,” or “to initiate formally by                   landfill does not occur until the point at
performing the first act of.” Webster’s                which “a certain continuance is assured,”
Third New International Dictionary 456                 and this might not be viewed as occurring
(1971).      “Establishment” may mean,                 until after the last legal obstacle is
among other things, “the act of bringing               surmounted or, perhaps, until commercial
into existence, creating, founding,                    operation actually begins. Because the
originating or setting up so that a certain            statutory language referring to the
continuance is assured” or “w ith                      “commence[ment” of the “establishment”
permanence in view.” Id. at 778. And                   of a landfill can comfortably accommodate
“construction” means “the act of putting               these widely divergent interpretations, it is
parts together to form a complete                      not unambiguous.
integrated object” or “fabrication.” Id. at
489.                                                          Although “construction” is a more
                                                       concrete concept than “establishment,” the
       Unfortunately, these definitions are            statutory refere nce to                the
not sufficiently precise to pin down at                “commence[ment]” of the “construction”
exactly what point in the process of                   of a landfill is also unclear. On the one
bringing a landfill into existence the                 hand, doing any physical work on the site
grandfather clause takes effect. As the                could be viewed as a step in the “the act of

                                                  14
putting parts together to form a complete             grandfather clause. Thus, we will assume
integrated object,” i.e., the landfill. On the        for the sake of argument that the
other hand, “construction” might be                   definitions in the Circular accurately
narrowly construed to mean the erection of            capture the statutory meaning.
a structure of some sort on the site.
                                                                          C.
       For these reasons, we agree with the
District Court that the statutory language is                Eagle argues that it commenced the
ambiguous.                                            “construction” of the Happy Landing
                                                      Landfill before the Wendell Ford Act
                     B.                               became law on April 5, 2000. The FAA
                                                      Circular, as previously noted, defines
         Because the statutory language is            “construction” as follows:
ambiguous, we must consider whether to
defer to the interpretation in FAA                           a. Construct a municipal
Advisory Circular 150/5200-34, which                         solid waste landfill means
d e f i n e s “construction” a nd                            excavate or grade land, or
“establishment.” The District Court gave                     raise structures, to prepare a
the Circular the measure of deference                        municipal solid waste
prescribed by Skidmore v. Swift & Co.,                       landfill as permitted by the
323 U.S. 134 (1944), but the FAA argues                      appropriate regulatory or
that the Circular actually merits the                        permitting authority.
stronger form of deference called for by
Chevron U.S.A. Inc. v. Natural Resources                      In arguing that its activities at
Defense Council, Inc., 467 U.S. 837                   Happy Landing Landfill prior to April 5,
(1984). The FAA makes this argument                   2000, fall within this definition, Eagle
even though “interpretations contained in             notes in particular that it completed the
policy statements, agency manuals, and                installation of 12 groundwater monitoring
enforcement guidelines” generally do not              wells in June 1996 at a cost of nearly
fall within Chevron. Christensen v. Harris            $35,000 and that the process of installing
County, 529 U.S. 576, 587 (2000); see also            such wells generally requires digging and
Alaska Dep’t of Envtl. Conservation v.                the placement underground of inner and
EPA, 124 S.Ct. 983, 1001 (2004) (agency               outer well casings, gravel, screens, sealing
interpretation in “internal guidance                  material, and pumps or bailers. Eagle also
memoranda” not entitled to Chevron                    points out that the state permit that
deference). We find it unnecessary to                 mandated the installation of these wells
decide this question, because even if we              described this process as “major
accept the Circular’s definitions of the key          construction activity.” Appellant’s Br. at
statutory terms, the Happy Landing                    17, 19. Eagle contends that the installation
Landfill facility falls within the                    of the w ells involved both the

                                                 15
“excavat[ion]” of land and the “rais[ing]”            within the broad definition of the term
of “structure[s].” Id. at 15-22.                      “raise.” See id. at 1877 (defining “raise”
                                                      to mean, among other things, “construct”).
         We will analyze this argument in             This interpretation is plausible in the
two parts. First, we will consider whether            present context since most construction at
Eagle’s installation of the groundwater               a landfill site is underground, and there are
m o n i t o r in g we lls cons titu te d              other situations (for example, building a
“construction” under the definition in the            subway) in which it is natural to speak of
FAA circular. Second, we will address the             underground construction. We note that
question whether the revocation of Eagle’s            the FAA has not argued that the reference
permit prior to April 5, 2000, affects the            in its Circular to the “rais[ing]” of
applicability of the grandfather clause.              structures is limited to above-ground
                                                      construction.       In any event, because
        Turning to the first of these                 Eagle’s activities involved “excavation”
questions, we conclude that the installation          and because this is sufficient to invoke the
of the wells comes easily within the                  grandfather clause, we need not decide
Circular’s definition. In order to install the        whether Eagle also “raise[d]” structures.
wells, Eagle “excavate[d],” i.e., dug out,
land.     See Webster’s Third New                             The FAA argues that Eagle’s
International Dictionary 791 (1971)                   installation of the groundwater monitoring
(defining “excavate” as “to hollow out:               wells was not “construction” but
form a cavity or hole in,” “to dig out and            “preconstruction” activity “undertaken to
remove (as earth or mineral matter)”). In             determine the viability of the site, in
addition, Eagle also installed an access              anticipation of the construction of the
road and a silt perimeter fence, and these            landfill, but not as part of its construction.”
activities also involved excavation.                  FAA’s Br. at 26. As noted, however, the
Moreover, all of these activities were                Circular refers to excavation done “to
done, in the words of the Circular, “to               prepare” a landfill. Installation of wells
prepare a municipal solid waste landfill.”            for the purpose of establishing to the
                                                      satisfaction of state regulators that a site is
        It also seems likely that the                 suitable falls within the scope of
installation of the wells amounted to the             “prepar[ation].”
“rais[ing]” of “structures.” That the wells
qualify as “structures” seems obvious, see                    The FAA notes that our prior
Webster’s Third New International                     opinion in this case characterized the
Dictionary 2267 (1971) (defining a                    installation of the wells as “pre-
“structure” as “something constructed or              construction,” see Khodara Envtl., Inc.,
built”), and while it is somewhat awkward             237 F.3d at 188 (“After obtaining these
to speak of the “raising” of an                       permits, Eagle began pre-construction by
underground structure, such usage falls               conducting engineering surveys and

                                                 16
installing monitoring wells.”), but this           the definition of “construction” that was
language is of little significance for             adopted by the FAA in its Circular. If
present purposes. We used the term “pre-           Jefferson County and Pine Creek
construction” in passing and without               Township feel that the FAA’s definition
reference to the grandfather clause. At            does not comport with Congress’s
issue here is not the meaning of                   objective, they should not have urged us to
“construction” in ordinary parlance but the        defer to that definition. Jefferson County
definition that the FAA placed in its              and Pine Creek Township contend that the
Circular. Our casual reference to “pre-            operation of the Happy Landing Landfill
construction” is no more controlling on            will pose a threat to aircraft using the local
that issue than the description of the             airport, but we must presume that the
installation of the wells in Eagle’s permit        interpretation of the grandfather clause
as “major construction activity.” 2                adopted by the FAA, the agency with
                                                   expertise in the field, takes aviation safety
       Jefferson County and Pine Creek             fully into account.
Township make the interesting argument
that the Happy Landing Landfill facility                  We therefore turn to the second
cannot fall within the grandfather clause          question noted above, i.e., whether the
because Congress adopted the statutory             revocation of Eagle’s permit prior to April
provision at issue for the very purpose of         5, 2000, affects the applicability of the
blocking Happy Landing Landfill. It is a           grandfather clause. The District Court
sufficient response to this argument to            answered this question in the affirmative
observe that – as all the defendants have          and wrote:
strenuously advocated – we are applying
                                                          We think that implicit in the
                                                          Ad visory Circular’s
       2                                                  definition of “construct[ion]
         At oral argument, counsel for the
                                                          of a municipal solid waste
FAA agreed that the statement in
                                                          landfill” is a temporality
Khodara I does not bind us in any way.
                                                          requirement: i.e., the landfill
The FAA contends, however, that the
                                                          must have been under
Wendell Ford Act’s grandfather clause
                                                          construction and permitted
was intended to distinguish between true
                                                          b y t h e a p p r o p ri a te
“construction,” which is freighted with
                                                          regulatory or permitting
developer and community expectations,
                                                          authority” as of April 5,
and “preconstruction” activity, which is
                                                          2000.     This requirement
not. We acknowledge that this
                                                          Eagle did not meet, as its
distinction may make sense as a matter of
                                                          Solid Waste Permit was still
policy, but neither the Act itself nor the
                                                          under suspension in April of
FAA’s interpretation in the circular gives
                                                          2000.
effect to such a policy.

                                              17
App. 51a-52a (emphasis in original).                        In sum, we hold that Eagle
                                                     commenced construction of the Happy
         In a similar vein, the FAA argues           Landing Landfill within the meaning of
that because “no construction was                    the FAA Circular prior to the effective
‘permitted by the appropriate regulatory or          date of the W endell Ford Act.
permitting authority’ as of the effective
date of the statute,” Eagle does not fall                                VI.
within the exception as interpreted by the
FAA. FAA’s Br. at 26 (emphasis added).
This argument overlooks the fact that the
grandfather clause speaks o f the
                                                     46. In light of the narrow scope of
“commence[ment]” of construction “on or              Section 503(b), however, it may well be
before” the date of the enactment of the             that this situation will never arise. It
Wendell Ford Act, 49 U.S.C. § 4717(d)                should be kept in mind that, prior to the
(emphasis added), not “as of” that date.             adoption of FARA and § 503(b), the
Accordingly, “construction,” as defined in           FAA generally prohibited the location of
t h e F A A C i r c u l ar , m u s t h a v e         a landfill within five miles of an airport.
“commence[d]” “on or before” April 5,                See Khodara I, 237 F.3d at 189 n.3.
2000. This means that “on or before” that            Thus, in order to fall within the District
date, Eagle must have begun to “excavate             Court’s hypothetical all of the following
. . . land . . . to prepare a municipal solid        conditions would have to be met: (1) the
waste landfill as permitted by the                   landfill site would have to be located
appropriate regulatory or permitting                 between five and six miles from an
authority.” In other words, the excavation           airport; (2) the airport would have to
must have been “permitted by the                     have received a federal grant of the type
appropriate regulatory or permitting                 specified in Section 503(b); (3) the
authority” on the date of commencement,              airport would have to be one that is
and this date must have been “on or before           “primarily served by general aviation
April 5, 2000.” This reading includes “a             aircraft and regularly scheduled flights of
temporality requirement,” but not the one            aircraft designed for 60 passengers or
identified by the District Court.3                   less; (4) the construction or
                                                     establishment of the landfill would have
                                                     to have commence pursuant to state
       3
         The District Court stated that              authorization prior to April 5, 2000; and
without its “temporality requirement,”               (5) completion of the landfill, for some
the grandfather clause could produce the             reason, would have to be delayed
following “absurd result”: “a landfill –             “indefinitely.” App. 52a. The class of
once permitted remotely in time – would              landfills satisfying all of these conditions
reap the benefit of § 503(d)(2)’s [§                 is almost certainly very small and may
503(b)’s] exception indefinitely.” App.              well be nonexistent.

                                                18
       For the reasons set out above, we
reverse the order of the District Court
granting summary judgment for the
defendants and remand for the entry of
summary judgment in favor of the plaintiff
and for the issuance of a declaratory
judgment that the Happy Landfill falls
within the grandfather clause of the
Wendell Ford Act.




                                             19
