Connecticut Wetland Laws Breach the Preemption Barrier: Sixth Circuit Holds that Federal Aviation Law Does Not Preempt Local Permit Process for Removing Wetland Trees

Connecticut Wetland Laws Breach the Preemption Barrier: Sixth Circuit Holds that Federal Aviation Law Does Not Preempt Local Permit Process for Removing Wetland Trees

If you're a science fiction fan, you've likely encountered a story or two about invisible, impenetrable fields. Or, maybe as a Stephen King fan, you read the book, Under the Dome, which is about a small, New England town trapped beneath a huge, clear barrier. Either way, you've touched upon the concept of preemption, which, in the fictional world, might be represented by a clear, far-reaching dome or field surrounding Congress and impenetrable to state laws.

Now as a good reader or as a good lawyer, you'd want to know when a field is impenetrable and when it is not. If you were making a list of preemption impenetrables, you might include atomic energy, foreign affairs, interstate commerce, and national labor relations, among others. However, in making your list, it would be best to define the field's strength, to understand that preemption lies somewhere between impermeability and permeability and that it is not an all or nothing concept. The 6th Circuit recently demonstrated this in upholding federal aviation's permeability against local wetland protections.  

In Goodspeed Airport LLC v. E. Haddam Inland Wetlands & Watercourses Comm'n, 2011 U.S. App. LEXIS 2645 (2d Cir. Conn. Feb. 10, 2011) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law], Goodspeed Airport, a Connecticut-licensed, privately owned and operated airport, sought to cut down trees on protected wetlands. Citing certain municipal regulations, the local regulatory body ordered the airport to first obtain a permit. The Airport refused, claiming the trees were obstructions under FAA regulations and were therefore hazards to air navigation. The Airport contended that it should be allowed to take whatever steps were necessary to remove the trees without first applying for a permit and that both the Connecticut Inland Wetlands and Watercourses Act (IWWA) and the Connecticut Environmental Protection Act (CEPA) were preempted. Specifically, the Airport argued that:

once a tree becomes an "obstruction" to air navigation under the FAA Regulations, the local permit process becomes ipso facto inapplicable to the Airport's efforts to trim or remove that tree. However, it does not claim that the permit process is entirely preempted or invalidated by federal law, merely that it cannot operate so as to interfere with the removal of obstructions to air navigation.

Examination of the Airport's argument required the 6th Circuit to consider whether federal law occupied the field of air safety, and if it did, whether the state laws and regulations intruded upon that field. The court joined its sister courts in concluding that Congress intended to occupy the entire field of air safety and thereby preempt state regulation of that field. However, in determining the scope of preemption, the key question was: at what point does the state regulation sufficiently interfere with federal regulation that it should be deemed preempted? In addressing this question, the court noted that:

  • Goodspeed Airport was not licensed by the FAA; it was not federally funded, and no federal agency had approved or mandated the removal of the trees from its property.
  • The federal government disclaimed any authority to order the trees' removal.
  • IWWA and CEPA were environmental laws that did not refer to aviation or airports. Neither statute prohibited the trimming or removal of any tree located in a protected area. Instead, the Wetlands Act required only that the Airport obtain a permit before removing the trees in question.

Under these facts, the court refused to preempt the permit process, holding that:

Although we hold that Congress has indicated its intent to occupy the entire field of aviation safety, the generally applicable state laws and regulations imposing permit requirements on land use challenged here do not, on the facts before us, invade that preempted field. Further, the impact on air carriers of the laws and regulations at issue here, if any, is too remote to be expressly preempted under the terms of the Airline Deregulation Act.

For a greater understanding of these issues, read:

1-15 Zoning and Land Use Controls § 15.03 Zoning for Private Airports [1] Local Regulation: Authority and Preemption

"The Supreme Court has held that local governments are preempted under the Commerce Clauseand the pervasive scheme of federal regulation from regulating flight patterns, even for such legitimate local purposes as noise control.  The courts, however, have consistently . . . ."

1-4 Land Use Law (The Zoning System-Federal Preemption) § 4.43 Regulation of Airports and Surrounding Areas

"The Federal Aviation Act of 1958 may preempt municipal regulation of airports and surrounding areas. The statute does not expressly preempt  . . . ."

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