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.
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:
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.
greater understanding of these issues, read:
1-15 Zoning and Land Use
Controls § 15.03 Zoning for Private
Airports  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
. . . ."
Land Use Law (The Zoning System-Federal Preemption) § 4.43 Regulation of Airports and Surrounding
"The Federal Aviation Act of 1958 may preempt municipal regulation of
airports and surrounding areas. The statute does not expressly preempt . . . ."
For more information about LexisNexis products and
solutions connect with us through our corporate