More or less FAA power coming? Supreme Court may decide soon!!!

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Federal Preemption makes FAA laws predominate over local

VERY complicated legal doctrine

Two cases heading to Supreme Court- decision could expand or shrink scope of FAA rules

There are few jurisprudence doctrines more complex than federal preemption and the application of this arcane precept is likely to have greater impact in these two pending cases (one three years ago and one more recent) :

Sikkelee v. Precision Airmotive Corp, No. 14-4193 (3d Cir. 2016)

Tweed-New Haven Airport Authority v. Tong, No. 17-3481 (2d Cir. 2019)

Both decisions decide the limits of federal preemption- one limiting the FAA rules application, the other found the FAA’s determination overruled state law. A conflict between the courts may cause the Supreme Court to resolve the difference.

The Precision Automotive case, the Third Circuit concluded that “federal law establishes the applicable standards of care in the field of air safety, generally, thus preempting the entire field from state and territorial regulation” – did not apply to state product liability claims concerning the design of aircraft engines. In a simple declarative statement, the FAA’s regulations (14 CFR Parts 21, et seq.), which establish the standards for aircraft certification, do not preempt state courts from deciding a standard for deciding liability standards.



The decision is on appeal to the Supreme Court. Though the request for certiorari has not been granted, the Justices have asked the Solicitor General to express the views of the US on this preemption case.


The Second Circuit decided that the FAA’s power was more extensive than the trial judge did. New Haven’s Tweed airport has a 5,600-foot-long primary runway—Runway 2/20—is one of the shortest commercial airport runways in the country. HVN sought and obtained approval from the Federal Aviation Administration (FAA) and the state of Connecticut in 2002 to extend Runway 2/20. The Runway Safety Area was required for larger commercial aircraft service. Subsequently the state changed its position and enacted a statute prohibiting expansion of Runway 2/20.


Tweed filed an action against the state seeking a declaratory judgment that the Runway Statute was invalid because it was preempted by the FAAct, which provides in part that “[t]he United States Government has exclusive sovereignty of airspace of the United States.” 49 U.S.C. § 40103(a)(1). After a bench trial, the district court concluded that Tweed lacked standing and, even assuming Tweed could establish standing, the FAAct did not preempt the CT Runway Statute.

The Second Circuit differed as reported by the National Law Register:

With regard to preemption, the Court of Appeals first reiterated the Goodspeed holding that the FAAct “was enacted to create a uniform and exclusive system of federal regulation in the field of air safety. . . . It was passed by Congress for the purpose of centralizing in a single authority . . . the power to frame rules for the safe and efficient use of the nation’s airspace.” Consequently, it reasoned, state laws that conflict with the FAAct “or sufficiently interfere with federal regulation of air safety are preempted.”

Thus turning to the second step in the analysis, the Court considered whether the statute fell within the scope of the preempted field. It found that the statute directly impacted air safety by limiting the length of the runway, which in turn limited the number of passengers, amount of baggage, and even the type of planes that could use the airport. The Court also considered the extent of FAA involvement with Tweed overall and with the length of the runway specifically, concluding that the “FAA’s involvement with Tweed and its runway project has been direct and significant.” …For all these reasons, the Court held that the state law was preempted.”

It has been reported that the CT Attorney General is likely to seek review by the Supreme Court.

Legal scholars explain that the difference between the two courts’ holding involves (i) implied field preemption for the “entire field of aviation safety” and (ii) “conflict preemption.” Another commentator, here more in the role of an advocate, said

“The fundamental and critical circuit split on the proper analysis of implied field preemption in aviation cases, illustrated and emphasized most recently by Tweed, undermines the very purpose of the FAAct of creating uniform and consistent standards of care for safety in the aviation industry. We hope the Supreme Court will grant certiorari and resolve it.”

This esoteric subject may have great impact on the FAA’s exercise of its powers in the near future. Important issues which could be impacted by a Supreme Court decision on these cases:

Establishment of the Unmanned Aerial Systems– new rules could define speed, altitude, rules of operation, requirement that operators receive FAA certification, noise…. all may hit conflicts with state and local rules. There have been policy signals from the White House of devolution on this issue, which would avoid the preemption conflict






Use of performance aircraft certification for all future Type Certifications; does that weaken the new Part 23 approach?







Commercial space—the criteria for the future launches???

Noise—especially due to NextGen, there has been much controversy over the FAA’s powers.

State Green initiatives– California has been aggressive in obviating the lack of federal environmental restrictions on cars—PLANES???

Airport Closure—there was no legal precedent in the “agreement” on Santa Monica, but…the neighbors are restless everywhere






Liability for noise surrounding airports was decided by the Supreme Court over 50 years ago (Allegheny v. Griggs), but the political pressure is high!

Preemption has not been taught in the FAA 101 course, but with these cases pending, there may be tutorials on this powerful legal principle given this potentially momentous decision. The Washington libertarians would like to see greater deference to state laws when in confrontation with federal legislation. The Roberts, Thomas, Alioto, Gorsuch and Kavanaugh view on the division of power has not been definitively decided yet. The ability of the FAA to create rules which will receive national recognition will depend on a Supreme Court decision.









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