     17-3481-cv (L)
     Tweed-New Haven Airport Authority v. Tong

 1                                                    In the
 2                        United States Court of Appeals
 3                                     For the Second Circuit
 4
 5
 6                                             August Term 2018
 7
 8                                       No. 17-3481-cv; 17-3918-cv
 9
10                        TWEED-NEW HAVEN AIRPORT AUTHORITY,
11
12                                                                              Plaintiff-Appellant,
13                                        CITY OF NEW HAVEN,
14
15                                                                Intervenor Plaintiff-Appellant,
16
17                                                        v.
18
19         WILLIAM TONG, in his official capacity as Attorney General for the State of
20                                     Connecticut,
21
22                                                                              Defendant-Appellee.*
23
24
25                      Appeal from the United States District Court
26                             for the District of Connecticut
27       No. 15 Civ. 1731 (RAR), Robert A. Richardson, Magistrate Judge, Presiding.
28                   (Argued: December 12, 2018; Decided: July 9, 2019)
29
30   Before:    SACK, PARKER, and CHIN, Circuit Judges.
31   ____________
32   * The Clerk of Court is respectfully directed to amend the official caption as indicated above.



                                                          1
     17-3481-cv (L)
     Tweed-New Haven Airport Authority v. Tong

 1          Plaintiff-Appellant Tweed-New Haven Airport Authority (“Tweed”),
 2   seeking to expand its primary runway, sued to invalidate a Connecticut statute
 3   that had limited the runway’s length. See Conn. Gen. Stat. § 15-120j(c). Tweed
 4   contended that the statute was preempted by the Federal Aviation Act, 49 U.S.C.
 5   § 40101 et seq. The United States District Court for the District of Connecticut
 6   (Richardson, Magistrate Judge), concluded that (1) Tweed lacked standing; and (2)
 7   assuming Tweed had standing, the Federal Aviation Act did not preempt the
 8   statute. We disagree. Accordingly, we reverse and remand for entry of judgment
 9   in favor of Tweed.
10
11          REVERSED and REMANDED.
12
13                                               Hugh I. Manke, John C. King, Christopher
14                                               A. Klepps, Updike, Kelly & Spellacy, P.C.,
15                                               Hartford, Ct., for plaintiff-appellant Tweed-
16                                               New Haven Airport Authority.
17
18                                               John Rose, Jr., Corporation Counsel,
19                                               New Haven Office of the Corporation
20                                               Counsel, New Haven, Ct., for intervenor
21                                               plaintiff-appellant Tweed-New Haven Airport
22                                               Authority.
23
24                                               Drew S. Graham, Assistant Attorney
25                                               General, Hartford, Ct., for defendant-appellee
26                                               William Tong, Attorney General of the State of
27                                               Connecticut.
28
29
30
31

32


                                                   2
    17-3481-cv (L)
    Tweed-New Haven Airport Authority v. Tong

1   BARRINGTON D. PARKER, Circuit Judge:

2           Tweed-New Haven Airport is located in the Town of East Haven and the

3   City of New Haven, Connecticut. The Airport is owned by the City of New

4   Haven and leased to and operated by Tweed-New Haven Airport Authority

5   (“Tweed”).1 Tweed sued the then Connecticut Attorney General George Jepsen in

6   his official capacity2 (the “State”), seeking a declaratory judgment that a

7   Connecticut statute (the “Runway Statute” or “Statute”) that limits the Airport’s

8   runway to its current length of 5,600 feet was invalid. See Conn. Gen. Stat. § 15-

9   120j(c). Tweed claimed that the Statute was preempted by federal laws governing




    1
     Tweed is “a body politic and corporate” created through legislation by the state
    of Connecticut. See Conn. Gen. Stat. § 15-120i(a). While its originating statute
    describes Tweed as a “public instrumentality and political subdivision” of
    Connecticut, it “shall not be construed to be a department, institution or agency
    of the state.” Id. It has a fifteen-member board of directors, comprised of persons
    appointed by the mayor of New Haven, the mayor of East Haven, and the South
    Central Regional Council of Governments. Id. § 15-120i(b). If Tweed is
    terminated, its rights and property pass to the City of New Haven. Id. § 15-
    120i(e).
    2
     Since the inception of the suit, the identity of the Connecticut Attorney General
    has changed from George Jepsen to William Tong. This change is reflected in the
    case caption.

                                                3
     17-3481-cv (L)
     Tweed-New Haven Airport Authority v. Tong

 1   the regulation of air transportation, including the Federal Aviation Act

 2   (“FAAct”), see 49 U.S.C. § 40101 et seq.

 3          Following a bench trial in the United States District Court for the District of

 4   Connecticut (Richardson, M.J.),3 the court concluded that Tweed lacked standing

 5   to sue because its injury was not caused by the Statute and that, assuming Tweed

 6   could establish standing, the Runway Statute was not preempted by the federal

 7   laws to which Tweed cited. Because we conclude that Tweed has standing and

 8   that the Runway Statute is preempted by the FAAct, we reverse.4

 9                                               BACKGROUND

10          The Airport serves the New Haven area. It has a catchment area—the area

11   from which an airport expects to draw commercial air service passengers—in

12   excess of 1,000,000 people. The Airport’s primary runway, Runway 2/20, is

13   currently 5,600 feet long. The runway is one of the shortest commercial airport

14   runways in the country, and it is the shortest runway for an airport with a


     3
       The parties consented to proceed before a magistrate judge through the entry of
     final judgment. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.
     4
      The salient facts are not in dispute and have been stipulated to by the parties.
     See Joint App’x 51-66.

                                                   4
     17-3481-cv (L)
     Tweed-New Haven Airport Authority v. Tong

 1   catchment area as large as Tweed’s area. The Airport’s catchment area is the

 2   largest catchment area without nonstop flights to Orlando, and there are no

 3   flights at the Airport to a number of East Coast cities such as Boston, Washington

 4   D.C., and Atlanta.

 5          In 2009, the Connecticut legislature, seeking to prevent the expansion of

 6   Runway 2/20, passed the Runway Statute, which provides that “Runway 2-20 of

 7   the airport shall not exceed the existing paved runway length of five thousand six

 8   hundred linear feet.” Conn. Gen. Stat. § 15-120j(c). The Runway Statute prevents

 9   Tweed from extending Runway 2/20 past its current length.

10          The short length of the Airport’s runway has sharply limited the

11   availability of safe commercial air service at Tweed. The length of a runway has a

12   direct bearing on the weight load and passenger capacity that can be handled on

13   any given flight. For example, at the time of trial, American Airlines, the one

14   commercial airline providing service to and from the Airport, was unable to

15   safely fill its planes to capacity and was required, depending on the weather, to

16   leave between four and nine seats empty.




                                                 5
     17-3481-cv (L)
     Tweed-New Haven Airport Authority v. Tong

 1           Tweed has been unable to attract new airline services. Tweed has

 2   contacted approximately ten different airlines and has been unable to convince

 3   them to operate out of the Airport. One airline, Allegiant Air, LLC, began an

 4   economic analysis of the feasibility of bringing additional flights to the Airport

 5   but concluded it would be pointless to continue with the analysis unless the

 6   runway were extended.

 7           Lengthening the runway would allow for the safe use of larger aircraft,

 8   allow flights with no seating restrictions, allow more passengers on each

 9   airplane, and allow service to more destinations. It would also allow Tweed to

10   attract more carriers and expand the availability of safe air service for its

11   customers.

12          As required by the Federal Aviation Administration (“FAA”), Tweed has

13   prepared a Master Plan for upgrading its airport, which includes extending the

14   runway.5 In 2002, the Master Plan—including the runway expansion—was




     5
      A Master Plan is required by the FAA for each commercial airport within its
     jurisdiction, such as Tweed, and represents a blueprint for the long-term
     development goals of the airport’s facilities.

                                                 6
     17-3481-cv (L)
     Tweed-New Haven Airport Authority v. Tong

 1   approved by the FAA and by the State of Connecticut. However, in 2009, the

 2   State changed its position and passed the Runway Statute.

 3          Tweed, seeking to lengthen the runway, sued for prospective injunctive

 4   relief, contending that federal law including the FAAct preempted the Runway

 5   Statute. The City of New Haven intervened as an additional plaintiff. The State

 6   moved to dismiss on several grounds, including that Tweed lacked Article III

 7   standing, that, as a political subdivision of the State of Connecticut, Tweed could

 8   not sue the State, and that the Runway Statute was not preempted. The District

 9   Court denied the State’s motion.

10          At trial, the parties largely relied on a joint stipulation of facts. The District

11   Court ultimately concluded that (1) Tweed lacked standing to sue because it had

12   not shown an injury-in-fact and causation attributable to the Statute; and (2) even

13   if Tweed had standing, federal law (including the FAAct) did not preempt the

14   Runway Statute. See generally Tweed-New Haven Airport Auth. v. Jepsen, No. 15-cv-

15   01731, 2017 WL 4400751, 2017 LEXIS 162356 (D. Conn. Oct. 3, 2017).

16          Tweed raises both these issues on appeal and the State contends, as it did

17   below, that Tweed cannot sue Connecticut because it is a political subdivision of


                                                 7
     17-3481-cv (L)
     Tweed-New Haven Airport Authority v. Tong

 1   the State. We review each of these questions de novo. Montesa v. Schwartz, 836 F.3d

 2   176, 194 (2d Cir. 2016) (standing); N.Y. SMSA Ltd. P’ship v. Town of Clarkstown, 612

 3   F.3d 97, 103 (2d Cir. 2010) (per curiam) (preemption).

 4                                               DISCUSSION

 5                                                   I.

 6          To establish Article III standing, a plaintiff must prove: “(1) injury-in-fact,

 7   which is a ‘concrete and particularized’ harm to a ‘legally protected interest’; (2)

 8   causation in the form of a ‘fairly traceable’ connection between the asserted

 9   injury-in-fact and the alleged actions of the defendant; and (3) redressability, or a

10   non-speculative likelihood that the injury can be remedied by the requested

11   relief.” W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 106-107

12   (2d Cir. 2008) (emphasis omitted) (quoting Lujan v. Defenders of Wildlife, 504 U.S.

13   555, 560-61 (1992)). Each of these elements “must be supported adequately by the

14   evidence adduced at trial.” Lujan, 504 U.S. at 561 (internal quotation marks and




                                                     8
     17-3481-cv (L)
     Tweed-New Haven Airport Authority v. Tong

 1   citation omitted). Based on the facts at trial, we conclude that Tweed meets each

 2   of these requirements.6

 3          First, we have little difficulty concluding that Tweed suffered an injury-in-

 4   fact. Where, as here, “the plaintiff is himself an object of the action (or forgone

 5   action) at issue . . . , there is ordinarily little question that the action or inaction

 6   has caused him injury, and that a judgment preventing or requiring the action

 7   will redress it.” Lujan, 504 U.S. at 561-62. The Runway Statute directly targets

 8   Tweed and prevents it from extending its runway.

 9           In addition, Tweed has established that it is injured by the threatened

10   enforcement of the Statute should Tweed attempt to extend the runway. The

11   State claims that standing is not available under this theory because Connecticut

12   has made no overt threat to enforce the Statute. Crediting this argument would

13   run afoul of the Supreme Court’s admonition not to put “the challenger to the

14   choice between abandoning his rights or risking prosecution.” MedImmune, Inc. v.


     6
      Only one party must have standing to seek each form of relief. Town of Chester v.
     Laroe Estates, Inc., 137 S. Ct. 1645, 1651 (2017). Because Tweed and the City of
     New Haven seek the same relief, we do not separately discuss the standing of the
     City.

                                                  9
     17-3481-cv (L)
     Tweed-New Haven Airport Authority v. Tong

 1   Genentech, Inc., 549 U.S. 118, 129 (2007) (internal quotation marks omitted). The

 2   very purpose of the Declaratory Judgment Act was to avoid requiring a litigant to

 3   confront this dilemma. Id.

 4          When courts consider whether the threatened enforcement of a law creates

 5   an injury for the purposes of standing, “an actual . . . enforcement action is not a

 6   prerequisite to challenging the law”; a pre-enforcement challenge is sufficient.

 7   Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014); see MedImmune, 549

 8   U.S. at 128-29; see also Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S.

 9   229, 234 (2010). Where a statute specifically proscribes conduct, the law of

10   standing does “not place the burden on the plaintiff to show an intent by the

11   government to enforce the law against it. Rather, it [has] presumed such intent in

12   the absence of a disavowal by the government or another reason to conclude that

13   no such intent existed.” Hedges v. Obama, 724 F.3d 170, 197 (2d Cir. 2013). The

14   record in this case shows no such disavowal.

15          Second, Tweed has demonstrated that its injury is caused by the Runway

16   Statute. For standing purposes, a plaintiff is required only to show that the injury

17   “is fairly traceable to the challenged conduct of the defendant.” Spokeo, Inc. v.


                                                 10
     17-3481-cv (L)
     Tweed-New Haven Airport Authority v. Tong

 1   Robins, 578 U.S. ___, 136 S. Ct. 1540, 1547 (2016). Where, as here, a plaintiff is

 2   threatened by the enforcement of a statute that specifically targets the plaintiff,

 3   the requirement is met. Lujan, 504 U.S. at 561-62. The Runway Statute is a solid

 4   barrier to extension of the Airport’s runway. Nothing can happen while the

 5   Statute is in place. Tweed’s injury is, therefore, “fairly traceable” to the Statute.

 6          The District Court concluded that, because other uncertainties stood in the

 7   way of the completion of an extended runway, the causation element was not

 8   satisfied. The District Court reasoned that because Tweed would have to obtain

 9   additional funding, secure approvals from various regulators, and obtain

10   environmental and other permits, none of which was assured, there did “not

11   appear to be a direct causal relationship between the statute and the plaintiff’s

12   alleged injury.” Tweed-New Haven, 2017 WL 4400751, at *8, 2017 LEXIS 162356, at

13   *22-23.

14          As an initial matter, the uncertainties seized upon by the District Court

15   have no bearing on Tweed’s fears of the Statute’s enforcement, which is an

16   independent basis for Article III standing. Further, we disagree with the District

17   Court’s analysis of the causation element of standing. A plaintiff is not required


                                                 11
     17-3481-cv (L)
     Tweed-New Haven Airport Authority v. Tong

 1   to show that a statute is the sole or the but-for cause of an injury. An injury can

 2   be “fairly traceable” even when future contingencies of one kind or another

 3   might disrupt or derail a project. The fact that a project’s ultimate completion

 4   may be uncertain because a plaintiff must undertake additional steps, such as

 5   obtaining funding, environmental permits, or additional carriers, does not defeat

 6   standing. Nearly every project of any complexity involves contingencies or

 7   uncertainties of some sort. The point of a standing inquiry is not to figure out

 8   whether a plaintiff will likely achieve a desired result. The point is simply to

 9   ensure that a plaintiff has a sufficient nexus to the challenged action in the form

10   of a personal stake in the litigation so that the case or controversy requirements

11   of Article III are met. See Chevron Corp. v. Donziger, 833 F.3d 74, 121 (2d Cir. 2016).

12          The Supreme Court has held that there is standing where “the challenged

13   action of the [government] stands as an absolute barrier” that will be removed “if

14   [the plaintiff] secures the . . . relief it seeks.” Vill. of Arlington Heights v. Metro.

15   Hous. Development Corp., 429 U.S. 252, 261 (1977). There, a developer sought to

16   build a cluster of low- and moderate-income townhouses in the Village of

17   Arlington Heights. Id. at 254. The developer eventually sued the Village for


                                                  12
     17-3481-cv (L)
     Tweed-New Haven Airport Authority v. Tong

 1   denying its application for a zoning variance, alleging racial discrimination and

 2   violations of the Fair Housing Act of 1968. Id. The Village argued that there was

 3   no injury for standing purposes because contingencies stood in the way of final

 4   completion of the project. Id. at 261 & n.7.

 5          The Supreme Court, in language fully applicable here, rejected the view

 6   that the existence of contingencies was a barrier to standing. Id. at 261. The Court

 7   held that standing was not defeated because the developer “would still have to

 8   secure financing, qualify for federal subsidies, and carry through with

 9   construction.” Id. (footnote omitted). We are, the Court emphasized, “not

10   required to engage in undue speculation as a predicate for finding that the

11   plaintiff has the requisite personal stake in the controversy.” Id. at 261-62.

12           We have also held that, for standing purposes, it was enough that

13   plaintiffs alleged “diligent efforts” to secure funding and had made progress on

14   the project in question. NAACP v. Town of Huntington, 689 F.2d 391, 394 (2d. Cir.

15   1982). In Town of Huntington, a not-for-profit housing group sought to construct a

16   large multi-family housing unit. The group sued the town, alleging that its

17   zoning regulations violated federal law. Id. at 393. While the suit was pending,

                                                 13
     17-3481-cv (L)
     Tweed-New Haven Airport Authority v. Tong

 1   the funds appropriated for the project lapsed and the town moved to dismiss the

 2   complaint on the ground that the lack of funding would render the requested

 3   relief (invalidation of the ordinance) meaningless. We nevertheless found

 4   standing because the group had shown diligent efforts to secure funding and had

 5   shown “some reasonable prospect for future financing” and obtaining

 6   governmental approvals if the statute was invalidated, which is all that is

 7   required. Id. at 394. Tweed comfortably meets this test. It has shown more than

 8   “diligent efforts” toward, and a reasonable prospect of, the project’s completion.

 9           Third, as to redressability, there is no question that a favorable decision

10   will likely redress Tweed’s fear of the Runway Statute’s enforcement. Cayuga

11   Nation v. Tanner, 824 F.3d 321, 332 (2d Cir. 2016) (stating that redressability

12   requirement is met where the court could prevent enforcement of a preempted

13   law). A favorable decision will also likely redress Tweed’s current inability to

14   move forward with the runway extension and will remove the absolute barrier

15   the Statute imposes. See W.R. Huff Asset Mgmt. Co., 549 F.3d at 106-107; see also

16   Lujan, 504 U.S. at 560-61. Accordingly, we hold that Tweed has established

17   Article III standing.


                                                 14
     17-3481-cv (L)
     Tweed-New Haven Airport Authority v. Tong

 1                                                    II.

 2          Next, the State contends that Tweed cannot bring suit against Connecticut

 3   because it is a political subdivision of Connecticut. As support for this

 4   proposition, the State relies on Williams v. Mayor of Baltimore, 289 U.S. 36 (1933),

 5   and City of Trenton v. New Jersey, 262 U.S. 182 (1923). Williams involved a suit

 6   under the Equal Protection Clause and Trenton involved a suit under the Contract

 7   Clause and the Fourteenth Amendment. In both cases, the Supreme Court held

 8   that suits under those provisions were not permitted. Williams, 289 U.S. at 40; City

 9   of Trenton, 262 U.S. at 188.

10          The view that subdivisions were broadly prevented from suing a state was

11   put to rest in Gomillion v. Lightfoot, 364 U.S. 339 (1960). There, the Supreme Court

12   considered a challenge under the Fourteenth and Fifteenth Amendments to

13   Alabama’s gerrymandering of the boundaries of the City of Tuskegee. Id. at 340.

14   The Court rejected Alabama’s assertion that a state’s power over its political

15   subdivisions was unrestricted by the Constitution: “Legislative control of

16   municipalities, no less than other state power, lies within the scope of relevant

17   limitations imposed by the United States Constitution.” Id. at 344-45. The Court

                                                 15
     17-3481-cv (L)
     Tweed-New Haven Airport Authority v. Tong

 1   emphasized that the “correct reading” of Williams and City of Trenton is “that the

 2   State’s authority is unrestrained by the particular prohibitions of the Constitution

 3   considered in those cases.” Id. at 344. Significantly, none of those cases involved

 4   the Supremacy Clause, which raises unique federalism concerns.

 5          Hundreds of federal laws apply nationwide to states and their political

 6   subdivisions. They impose various responsibilities and prohibitions on states and

 7   political subdivisions that are intended by Congress to apply nationwide. If the

 8   Supremacy Clause means anything, it means that a state is not free to enforce

 9   within its boundaries laws preempted by federal law. Lawsuits invoking the

10   Supremacy Clause are one of the main ways of ensuring that this does not occur.

11          In the years following Gomillion, the Supreme Court has repeatedly

12   entertained suits against a state by a subdivision of the state, including cases

13   under the Supremacy Clause. See Va. Office for Prot. & Advocacy v. Stewart, 563

14   U.S. 247, 252-53 (2011) (considering suit by independent state agency against its

15   state for violation of federal law alleged to conflict with state law); Nixon v. Mo.

16   Mun. League, 541 U.S. 125, 130-31 (2004) (considering Supremacy Clause

17   challenge by municipalities and utilities against state statute); Lawrence Cty. v.

                                                 16
     17-3481-cv (L)
     Tweed-New Haven Airport Authority v. Tong

 1   Lead-Deadwood Sch. Dist., 469 U.S. 256, 258 (1985) (considering Supremacy Clause

 2   challenge by county against state statute); accord Bd. of Educ. v. Allen, 392 U.S. 236

 3   (1968); see also Romer v. Evans, 517 U.S. 620, 623-24 (1996) (state constitutional

 4   amendment preventing local anti-discrimination ordinances violated the Equal

 5   Protection Clause); Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 487 (1982)

 6   (state statute prohibiting a local busing desegregation plan violated the

 7   Fourteenth Amendment).7 In light of this authority, we hold that a subdivision

 8   may sue its state under the Supremacy Clause. In reaching this conclusion we

 9   join the Fifth and Tenth Circuits. Rogers v. Brockette, 588 F.2d 1057 (5th Cir. 1979);

10   Branson Sch. Dist. RE-82 v. Romer, 161 F.3d 619 (10th Cir. 1998). But see

11   Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360 (9th Cir.

12   1998) (holding a political subdivision lacks standing to sue its own state under

13   the Supremacy Clause).


     7
      We have held that a political subdivision does not have standing to sue its state
     under the Fourteenth Amendment. See Aguayo v. Richardson, 473 F.2d 1090, 1100
     (2d Cir. 1973); City of New York v. Richardson, 473 F.2d 923, 929 (2d Cir. 1973).
     Those cases provide no aid to the State as Tweed is not seeking to assert its own
     rights under the Fourteenth Amendment, which presents considerations different
     from those we consider here.

                                                 17
     17-3481-cv (L)
     Tweed-New Haven Airport Authority v. Tong

 1                                               III.

 2          Tweed next contends that the Runway Statute is preempted by the FAAct.8

 3   We agree. The FAAct “was enacted to create a uniform and exclusive system of

 4   federal regulation in the field of air safety . . . . [It] was passed by Congress for

 5   the purpose of centralizing in a single authority . . . the power to frame rules for

 6   the safe and efficient use of the nation’s airspace.” Air Transp. Ass’n of Am., Inc. v.

 7   Cuomo, 520 F.3d 218, 224-25 (2d Cir. 2008) (internal quotation marks omitted).

 8   With these objectives in mind, we have held that the FAAct impliedly preempts

 9   the entire “field of air safety.” Goodspeed Airport LLC v. E. Haddam Inland Wetlands

10   & Watercourses Comm’n, 634 F.3d 206, 210-11 (2d Cir. 2011). Accordingly, “[s]tate

11   laws that conflict with the FAA[ct] or sufficiently interfere with federal regulation

12   of air safety are . . . preempted.” Fawemimo v. Am. Airlines, Inc., 751 F. App’x 16,

13   19 (2d Cir. 2018) (summary order). Our court has been clear as can be that FAAct




     8
      Tweed also contends that the Runway Statute is preempted by the Airline
     Deregulation Act and the Airport and Airway Improvement Act. Because we
     conclude that the Runway Statute is preempted by the FAAct, we make no
     determination concerning preemption under these other statutes.

                                                 18
     17-3481-cv (L)
     Tweed-New Haven Airport Authority v. Tong

 1   preemption applies to airport runways. Air Transp. Ass’n, 520 F.3d at 224-25

 2   (FAAct preemption “extends to grounded planes and airport runways”).

 3          Our next inquiry is whether the Runway Statute falls within the scope of

 4   that preemption. “The key question is thus at what point the state regulation

 5   sufficiently interferes with federal regulation that it should be deemed

 6   pre-empted[.]” Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 107 (1992). We

 7   straightforwardly conclude that the Runway Statute falls well within the scope of

 8   the FAAct’s preemption because of its direct impact on air safety.

 9          The Airport has the 13th shortest runway out of the 348 airports where

10   commercial service is provided. Furthermore, the State has conceded that “the

11   length of the runway has a direct bearing on the weight load and passenger

12   capacity that can be safely handled on any given flight.” Joint App’x 55. Because

13   of the Statute, “[w]eight penalties are imposed on [existing] aircraft [at the

14   Airport] for safety reasons.” Id. The Statute has limited the number of passengers

15   that can safely occupy planes leaving the Airport by preventing planes from

16   taking off at maximum capacity. For these safety reasons, carriers are forced to

17   cut back on an ad-hoc basis the number of passengers that can safely be carried,


                                                 19
     17-3481-cv (L)
     Tweed-New Haven Airport Authority v. Tong

 1   the amount of baggage they can bring with them, and the total weight of luggage

 2   that can be loaded.

 3          Additionally, the Runway Statute has sharply limited the types of planes

 4   that can use the runway. Modern jet passenger planes of the types used across

 5   the country cannot safely use the Airport. This localized, state-created limitation

 6   is incompatible with the FAAct’s objective of establishing “a ‘uniform and

 7   exclusive system of federal regulation’ in the field of air safety.” Air Transp. Ass’n,

 8   520 F.3d at 224 (quoting City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624,

 9   639 (1973)). If every state were free to control the lengths of runways within its

10   boundaries, this Congressional objective could never be achieved.

11          The inflexibility of the ban imposed by the Runway Statute also counsels in

12   favor of preemption. The Runway Statute’s restriction on runway development is

13   absolute—it is a total barrier to improvements that could make Tweed safer and

14   more modern. Courts in this Circuit have held that the FAAct preempts

15   significantly less rigid statutes that merely place limitations rather than total bans

16   on runway modification. For example, in Tweed-New Haven Airport Authority v.

17   Town of East Haven (“Tweed I”), the court held that a state regulation that required


                                                 20
     17-3481-cv (L)
     Tweed-New Haven Airport Authority v. Tong

 1   regulatory approval before the runway safety areas could be constructed was

 2   preempted. 582 F. Supp. 2d 261, 268-69 (D. Conn. 2008). Similarly, in Town of

 3   Stratford v. City of Bridgeport, the court held that a statute that required an airport

 4   to obtain approval of the town in which it is located before it can undertake a

 5   federally mandated runway safety project was preempted. No. 10-cv-394, 2010

 6   WL 11566477, at *6, 2010 LEXIS 65975, at *21-23 (D. Conn. June 18, 2010). Those

 7   statutes merely required state or city approval for improvements to an airport’s

 8   runway. Unlike those cases, the Runway Statute prohibits runway expansion

 9   entirely. The Statute’s interference with the field of air safety is, therefore, even

10   greater than was the case with other statutes courts have held to be preempted by

11   the FAAct.

12          Finally, we have noted that FAAct preemption is less likely to apply “to

13   small airports over which the FAA has limited direct oversight.” Goodspeed, 634

14   F.3d at 211-12. Tweed is not such an airport. On the contrary, the FAA’s

15   involvement with Tweed and its runway project has been direct and significant.

16   The Airport is federally regulated and exists within the Tweed-New Haven

17   Airport Layout Plan (“ALP”), which is approved by the FAA. The FAA


                                                 21
     17-3481-cv (L)
     Tweed-New Haven Airport Authority v. Tong

 1   maintains full control over any modification to the ALP, including runway

 2   length. The Airport is classified by the FAA as a primary commercial service

 3   airport and is required to hold an operating certificate under FAA regulation 14

 4   C.F.R. Part 139. A Master Plan is required of all Part 139 airports, and Tweed’s

 5   Master Plan, which includes extending the length of the runway up to 7,200 feet,

 6   was approved by the FAA as far back as 2002. This level of federal interest and

 7   involvement is further indication that the Runway Statute is preempted.

 8          In response to all of this, the State maintains that implied preemption is not

 9   warranted because the Runway Statute “does not prevent Tweed from complying

10   with any federally-mandated safety standards.” Appellee’s Br. at 56-57. But the

11   State confuses different branches of implied preemption law: conflict preemption

12   and field preemption. Conflict preemption exists when a state law “actually

13   conflicts with federal law,” English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990), in other

14   words, where “state law stands as an obstacle to the accomplishment” of

15   Congress’s intent, Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707,

16   713 (1985). This case involves field preemption, not conflict preemption. Field

17   preemption exists where “Congress intended the Federal Government to occupy


                                                 22
     17-3481-cv (L)
     Tweed-New Haven Airport Authority v. Tong

 1   [a field] exclusively.” Air Transp. Ass’n, 520 F.3d at 220. And as we have seen,

 2   Congress intended the FAAct to occupy the entire field of air safety including

 3   runway length.

 4           The State next asserts that the FAAct does not preempt the Runway Statute

 5   because here, unlike in Tweed I, no federal mandate requires that Tweed extend its

 6   runway. See Appellee’s Br. at 58. This characterization misses the point.

 7   Preemption analysis does not turn on whether the airline safety activity is

 8   mandated by the federal government; the dispositive question is whether the

 9   Runway Statute intrudes into the field of air safety. We conclude that it does and

10   does so directly. For these reasons, we hold that the Runway Statute is preempted

11   by the FAAct.

12                                               CONCLUSION

13          The judgment of the lower court is REVERSED and the case is

14   REMANDED for entry of judgment in favor of Tweed.




                                                     23
