neling states and require sponsors to receive approval prior to submitting a request for FAA funding.

The FAA encourages airports in block grant and channeling states to coordinate with their associated state agency prior to submitting funding requests.⁹⁷ The state’s status in either category can affect funding formulas and eligibility. The state’s role in administrating FAA funds permits the state to interject state-specific safety and security concerns directly into the airport’s funding requests.

VIII. FEDERALIST SYSTEM AND LEGAL LIMITATIONS

The interrelated responsibilities created by airport regulations are a textbook federalist environment. Governing an airport is shared by the sponsor, ordinarily a subdivision of or unit of the state government the state, and the federal government. This system is subject to conflict preemption, express preemption, and implied preemption. It is beyond the scope of this LRD to thoroughly examine federal preemption. However, the reader should have a basic understanding of preemption because it directly impacts what states may and may not regulate. In other words, preemption may determine if a state law is constitutional or unconstitutional. No specific state or local statutory analysis of preemption is presented in this LRD. This section provides an introduction on preemption issues to consider when evaluating the state and local requirements presented in the LRD.

The source of federal preemption is the Supremacy Clause of Article VI of the U.S. Constitution. The Supremacy Clause states:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. U.S. CONST., Art. VI, cl. 2.

The history of airport regulation demonstrates Congress has not created mandatory federal airport rules. For example, the Air Commerce Act of 1926 provided an advisory role to the federal government regarding airports, and the certification of commercial air service airports was not authorized until 1970. Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta⁹⁸ supports the proposition that federal rules and regulations promulgated in furtherance and to administrate a federal law is a source of preemption. There are several illustrative cases in this area.

Burbank v. Lockheed Air Terminal⁹⁹ is the seminal airport preemption case. The Supreme Court determined that a local ordinance enacted based on the City’s police powers establishing a curfew for air traffic was preempted by the Federal Aviation Act of 1958 and the Noise Control Act of 1972. Justice Douglas concluded that enacting an ordinance that restricts activity created an aviation system with more congestion, less efficiency, and aggravated the noise problem. The FAA and the EPA’s system for responding to noise consumed the field and the federal regulatory scheme left no room for state or local regulation.

A district court reviewing the interaction of state and federal law provided the following analysis:

As a testament to the flexibility of the federal system, examining courts have generally found that these laws regulating land use can co-exist with federal aviation law, at least in regards to principles of field preemption, so long as neither their purpose nor their effect encroaches into the field of airspace management or safety. The United States Federal Aviation Administration has acknowledged that land use matters within the federal aviation framework are intrinsically local. Local zoning laws are not preempted by an established airport’s attempt to expand by acquiring adjacent land. The Federal Aviation Act does not preclude local regulation that does not actually reach into the forbidden, exclusively federal areas, such as flight paths, hours, or altitudes.¹⁰⁰

In Goodspeed Airport, the operators of an airport challenged a statewide requirement that trees could not be removed without a permit. The requirement to obtain a permit was a facially neutral regulation that impacted an aviation regulatory provision in an incidental manner.

In Town of Stratford v. City of Bridgeport,¹⁰¹ a Connecticut statute that was argued to require approval of a municipality that did not own the airport, but the airport was physically located in, to approve the establishment, maintenance, expansion, or improvement of the airport. In this case, the improvement (transfer of property from the FAA to the airport owner) was required to provide an FAA standard runway safety area. The court determined that Conn. Gen. Stat. § 13b-43, in so far as it limited the airport from making FAA-required safety improvements, was preempted. The airport in this case was subject to Part 139 certification. This distinction was noted in the decision distinguishing this case from Goodspeed.

In a state tort claim case, a West Virginia court refused to extend federal preemption to an engineering firm for the destruction of a house during airport construction.¹⁰²

The FAA, in a legal interpretation issued on December 1, 2020, concluded that that the state of Florida’s administrative regulation that required the provision of information regarding “all existing and approved airport sites” to allow the state to make a determination of safety of operations was beyond the state’s authority.¹⁰³ Florida’s airport standards include regulations related to VFR operations and specific flight patterns. According to the interpretation, “State police power authority (including land use) does not permit regulation of aircraft safety, flight management, the protection of persons and property on the ground, or the efficiency of the navigable airspace.”