Tweed-New Haven Airport Autority v. Jepsen

Filing 78

Memorandum of Decision in favor of the defendant. Signed by Judge Robert A. Richardson on 09/30/2017.(Richardson, Robert)

Case 3:15-cv-01731-RAR Document 78 Filed 09/30/17 Page 1 of 48

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
TWEED-NEW HAVEN AIRPORT
AUTHORITY,

:
:
:
Plaintiff,
:
:
v.
: CASE NO. 3:15cv01731 (RAR)
:
GEORGE JEPSEN, IN HIS
:
OFFICIAL CAPACITY AS ATTORNEY :
GENERAL FOR THE STATE OF
:
CONNECTICUT
:
:
Defendant.
:
MEMORANDUM OF DECISION
Plaintiff, Tweed-New Haven Airport Authority (hereinafter
“Plaintiff” or “the Authority”), brings this suit against George
Jepsen in his official capacity as Attorney General for the
State of Connecticut (“Defendant”), seeking declaratory relief
pursuant to the Declaratory Judgment Act, 28 U.S.C. §2201 et
seq.

(Dkt. # 1).

Plaintiff alleges that Conn. Gen. Stat. 15-

120j(c) violates the Supremacy Clause of the United States
Constitution.
For the reasons set forth below, the Court finds that the
plaintiff lacks standing to bring this action and that Conn.
Gen. Stat. 15-120j(c) is not preempted by the Supremacy Clause.

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PROCEDURAL BACKGROUND
Plaintiff filed this action on November 24, 2014 in federal
court.

(Dkt. # 1).

Motion to Dismiss.

On June 30, 2016, the defendant filed a
(Dkt. # 39).

On August 8, 2016, plaintiff

filed a memorandum in opposition to defendant’s motion to
dismiss.

(Dkt. # 44).

On August 22, 2016, the defendant filed

a reply memorandum in support of its motion to dismiss.
45).

(Dkt. #

On September 29, 2017, the Court held oral argument on the

motion to dismiss.

(Dkt. # 49).

On December 9, 2016, the

undersigned denied the motion to dismiss.

(Dkt. # 53).

A bench trial was held on March 22, 2017 before the
undersigned.

(Dkt. # 67).

On May 19, 2017, the parties

submitted simultaneous post-trial briefs.

(Dkt. #’s 73-74).

On

July 19, 2017, at the request of the parties, oral argument was
held on the post-trial briefs.

(Dkt. # 77).

FACTUAL BACKGROUND
The following facts, drawn from the parties’ Stipulation of
facts in their Joint Trial Memorandum, are undisputed.

(Dkt. #

59, Stipulation of Facts).1
Tweed-New Haven Airport Authority is a public
instrumentality and political subdivision of the state of
Connecticut, pursuant to Conn. Gen. Stat. 15-120i, et seq.

1

The stipulated facts are hereafter referred to as “Stip. #.”

2

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(Stip. # 2).

The airport property is owned by the City of New

Haven and leased to the Authority pursuant to the terms of a
Lease and Operating Agreement, dated July 1, 1998.

(Stip. # 7).

The length of Runway 2/20 is currently approximately 5,600
linear feet.

(Stip. # 9).

In 2009, the state of Connecticut,

through Public Act 09-7, amended Conn. Gen. Stat. §15-120j by
adding subsection (c) which provides, in relevant part: “Runway
2/20 of the airport shall not exceed the existing paved runway
length of five thousand six hundred linear feet.”

(Stip. # 9).

The Airport is among the public-use airports included in
the National Plan of Integrated Airport Systems.

(Stip. # 10).

The Airport consists of numerous structures, including an
airport terminal building and an air-rescue and fire-safety
facility, Runway 2/20, which runs essentially North/South on the
site, crosswind Runway 14/31, which runs Northwest/Southeast,
and a number of taxiways.

(Stip. # 12).

All of these

structures are within the Airport’s boundaries and are part of
the Airport Layout Plan (“ALP”).

(Stip # 13).

The ALP is

approved by the FAA, which maintains full control over any
modifications to the ALP, including limitations on runway
length.

(Stip. # 13).

The Airport is classified by the United States Department
of Transportation Federal Aviation Administration (“FAA”) as a
primary, commercial service airport in that it provides
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regularly scheduled commercial passenger air service.
14).

(Stip. #

As a result of this classification, the Airport is

currently required to, and does, hold an operating certificate
under FAA regulation part 139 (14 C.F.R. Part 139), which
currently requires the Airport to have runway safety areas on
its main runway that are acceptable to the FAA.

(Stip. # 14).

Part 139 establishes the rules governing the certification
and operation of airports serving scheduled passenger-carrying
operations of an air carrier operating aircraft configured for
more than 9 passenger seats.

(Stip. # 15).

The Airport is

required under Part 139 to operate and maintain the Airport
according to standards contained in the FAA Advisory Circulars.
(Stip. # 15).

Additionally, as a recipient of federal aid under

the FAA Airport Improvement Program (“AIP’), the Airport is
required to comply with AIP grant assurances.

(Stip. # 15).

The FAA requires a master plan that outlines future plans
for upgrading airport facilities for each Part 139 airport.
(Stip. # 16).

The Airport’s updated master plan for the

Airport, which included extending the length of Runway 2/20 up
to 7,200 linear feet, was approved by the state and by the FAA
in 2002.

(Stip. # 16).

There is one commercial airline providing service to the
Airport from Philadelphia, with four scheduled flights per day
in each direction and a capacity of no more than 37 passengers
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on each flight.

(Stip. # 17).

The length of the runway has a

direct bearing on the weight load and passenger capacity that
can be safely handled on any given flight.

(Stip. # 17).

Since 2009, the Airport has failed to attract a single new
scheduled commercial carrier, and service remains low, with
fewer than 35,000 emplanements per year.

(Stip. # 18).

Weight

penalties are imposed on aircraft for safety reasons, and a
longer runway could potentially reduce or eliminate the weight
penalties that are imposed on existing flights at the Airport.
(Stip. # 19).

Current scheduled commercial service at the

Airport is entirely provided by a single type of aircraft, the
Bombardier DH8-100 (the “Dash 8”).

(Stip. # 20).

Runway 2/20, because of its length, does not allow the Dash
8 to takeoff at maximum capacity.

(Stip. # 21).

The Dash 8 has

capacity for 37 passengers, but generally only 33 passengers are
allowed on the plane.

(Stip. # 6).

Lengthening Runway 2/20

would allow the Dash 8 and other larger aircrafts to potentially
service the Airport, hold more passengers and service additional
destinations.

(Stip. # 22).

The Airport has commenced planning on a runway extension
project to increase the functioning length of Runway 2/20,
within the existing boundaries of the Airport and the ALP, on
land that is currently part of the runway safety areas.
# 23).

(Stip.

The planning documents describe several alternatives for
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lengthening Runway 2/20 up to 6,601 linear feet and modifying
related taxiways.

(Stip. # 23).

The initial step in the

Project is to perform an Environmental Assessment of the various
layout and construction options.

(Stip. # 23).

The Authority

has expended private funds to hire Hoyle, Tanner & Associates,
Inc. (“Hoyle”), a consulting engineering firm, which has
conducted a preliminary environmental assessment.

(Stip. # 23).

Robert M. Furey is Senior Vice President at Hoyle, which is
located in Manchester, NH.

(Stip. # 25).

Hoyle specializes in

airport planning, design and construction administration and has
performed engineering work for the Authority since 1999.
# 27).

(Stip.

Mr. Furey has personal knowledge regarding the

Preliminary Environmental Assessment at the Airport and the
environmental assessment process.

(Stip. # 26).

Federal review and comment is necessary for any construction
project located within the ALP, and one of the initial steps in
any such project under the applicable federal regulations is to
submit an Environmental Assessment to the FAA.

(Stip. # 28).

Hoyle looked at a number of alternatives for lengthening
Runway 2/20 ranging from 6,601 linear feet up to 7,000 linear
feet.

(Stip. # 29).

The Authority proposes to pave a portion

of the Runway 2/20 runway safety areas and this paved section
would be considered a runway extension.

6

(Stip. # 24).

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In 2014, Hoyle completed the first three chapters of an
Environmental Assessment, as the customary procedure is to
submit a Preliminary Environmental Assessment to the FAA for
review and comment before drafting the full Environmental
Assessment.

(Stip. #’s 30-31).

The ultimate document that the

Authority submitted to the FAA for review included only runway
alternatives that were not longer than 6,601 linear feet.
(Stip. # 29).
The FAA has declined to review and comment on the content
of the Preliminary Environmental Assessment for more than two
years.

(Stip. # 32).

The FAA has not provided funding to the

Project and has not reviewed the alternative layouts presented
in the Preliminary Environmental Assessment.

(Stip. # 32).

FAA

review of the Preliminary Environmental Assessment is a
necessary step in the Environmental Assessment process.

(Stip.

# 33).
The FAA is not proceeding with review of the Environmental
Assessment in part because the Authority is in violation of
several federal grant assurances and regulations.

(Stip. # 34).

The FAA’s decision not to respond to the Authority’s request for
review of the Preliminary Environmental Assessment is in part
because of the runway length limitation in Connecticut General
Statutes §15-120j(c).

(Stip. # 35).

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Whenever the Authority accepts federal funds, it agrees to
various grant assurances which, among other things, require
compliance with a long list of federal statutes and regulations
directed to airport facilities and operations.

(Stip. # 36).

Non-compliance by an airport such as Tweed can result in
enforcement action by the FAA.

(Stip. # 36).

FAA Advisory Circular 150/5300-13A, Airport Design,
establishes criteria for the separation of runways and parallel
taxiways.

(Stip. # 37).

The runway to taxiway separation

distance is a function of the Airport Reference Code.
37).

(Stip. #

The ALP approved by the FAA for the Airport identifies the

primary runway, Runway 2/20, as a C-III runway.

(Stip. # 37).

The designation C-III includes aircraft with approach speeds of
121 knots or more but less than 141 knots, and wingspans greater
than 79 feet but less than 118 feet.

(Stip. # 37).

The interactive runway design standard matrix (Table 3-5)
in FAA Advisory Circular 150/5300-13A specifies that the runway
centerline to parallel taxiway centerline for C-III aircraft is
400 feet.

(Stip. # 38).

The current locations and dimensions

of taxiways, which are integral to the aircraft landing and
takeoff system, are not in compliance with federal regulations
in terms of their distance from Runway 2/20.

(Stip. # 39).

This non-standard separation between the taxiway and the runway

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could be brought into compliance as part of the proposed runway
extension project.

(Stip. # 39).

Hoyle prepared drawings depicting improvements to Taxiways
A, F and G at the Airport.

(Stip. # 40).

The primary safety

improvement alternative is to extend the runway with a taxiway
centerline separation to the required distance of 400 feet, in
accordance with FAA Advisory Circular 150/5300-13A, Table 5.
(Stip. # 40).

This would provide the Airport and FAA with safer

runway and taxiway ground

maneuvering as well as greater

separation between active takeoff and landing operations and
aircraft which are either holding short or maneuvering adjacent
to the runway.

(Stip. # 40).

The alternatives identified in the Preliminary
Environmental Assessment include the extension of the parallel
taxiway.

(Stip. # 41).

A full length parallel taxiway is

required for runways with instrument approach procedures with
visibility minimums below one mile. (Stip. # 41).

The existing

Runway 2/20 instrument landing system approach has visibility
minimums of ¾ mile. (Stip. # 41).

Construction of the parallel

taxiway at the standard 400 foot runway centerline to taxiway
separation would bring the airport into compliance with FAA
standards.

(Stip. # 41).

Although there is no enforcement action pending by the FAA
against the Authority due to the non-standard separation between
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the taxiway and the runway, the FAA has issued notice to the
Authority that the Authority is not in compliance with all of
the requirements of CV.F.R/ part 139, the Airport Certification
Manual and the Airport Operating Certificate.

(Stip. # 42).

The FAA expects the Authority to achieve the standard 400 foot
separation between Taxiway A and Runway 2/20 and the 400 foot
separation has been included in the Preliminary Environmental
Assessment.

(Stip. # 42).

The Authority is not in compliance with FAA design
standards due to the non-standard taxiway geometry.
43).

(Stip. #

The FAA has given the Authority until May 6, 2021 to

redesign and reconstruct its taxiways, including realignment of
Taxiway A, to bring the Airport into compliance with federal
design standards.

(Stip. # 43).

There is no current or pending

FAA enforcement action against the authority for noncompliance
with any FAA safety standard applicable to 49 U.S.C. Part 139
airports or any standard contained in FAA Advisory Circular
150/5300-13A.

(Stip. # 44).

Tom Reich, the Director of Air Service Development at AFCO
AvPorts Management, LLC, has provided marketing services to the
Tweed-New Haven Airport and for other airports around the
country. (Stip. # 45).

He was previously employed as a market

analyst for Independent Air and as the Manager of Market
Planning for Colgan Air’s United Express and US Airways Express
10

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branded operations.

(Stip. # 45).

Mr. Reich has provided

marketing services for the Airport since December 2011.
# 46).

(Stip.

During the time that he has provided marketing services

to the Airport, Mr. Reich has been in touch with approximately
ten different airlines with regard to the possibility of those
airlines bringing service to the airport.

(Stip. # 46).

From 2012 to 2016, Mr. Reich attended the Airports Council
International—North America JumpStart Air Service Development
Conference, where airlines and airport administrators convene
annually.

(Stip. # 48).

Mr. Reich has met with numerous

airline representatives at the JumpStart conferences with regard
to the possibility of those airlines bringing service to the
Airport, and has remained in steady contact with airline
representatives throughout the years, even outside of JumpStart
conferences.

(Stip. # 48).

In Mr. Reich’s experience, there are three primary factors
that determine whether or not an airline will choose to provide
service to a given destination: (1) market size; (2) equipment
performance; and (3) economic viability.

(Stip. # 49).

One

analysis, completed by AvPort, shows that the South-Central
Connecticut market is the largest catchment area in the United
States in terms of existing passenger demand without nonstop
flights to Orlando, Florida.

(Stip. # 50).

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In Mr. Reich’s experience, the overriding issue with
respect to an airline choosing to provide service to a new
destination is economic viability.

(Stip. # 51).

Runway length

is an integral part of an airline’s economic viability analysis
due to the weight restrictions a shorter runway can cause and
the resulting limit to the number of passengers that can be
carried on the flight.

(Stip. # 51).

Lengthening a runway

could eliminate safety concerns and could reduce the need for
these weight restrictions at a given airport, allowing aircraft
to carry more passengers while increasing the profit potential
of the flight to an acceptable level for the airline.

(Stip. #

52)
In Mr. Reich’s experience, weight restrictions can impose
economic impediments at airports, such as Tweed, with short
runways.

(Stip. # 53).

The Airport has the thirteenth shortest

runway out of 348 airports where commercial service is provided,
and according to the AvPorts analysis, the twelve airports with
shorter runways do not have as large a catchment area as TweedNew Haven Airport.

(Stip. # 53).

Tweed-New Haven Airport has

the shortest runway in the nation for catchment areas with
$1,000,000 or more people.

(Stip. # 53).

Allegiant Air has prepared this type of economic analysis
for the Airport and has declined to service the Airport because
“runway 2/20 is too short for Allegiant to comfortably operate
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regularly scheduled commercial service.”

(Stip. # 55).

Over

his last five years providing marketing services to the Airport,
Mr. Reich has been unable to convince any new airlines to
commence service at Tweed.

(Stip. # 57).

Over the past eight years the Authority has been operating
the Airport at a loss which has required annual subsidies from
the state of Connecticut in the amount of $1,500,000 and from
the City of New Haven in the amount of $325,000.

(Stip. # 58).

The subsidy from the State was reduced to $1,480,000 for fiscal
year 2016-2017.

(Stip. # 58).

Notwithstanding marketing

efforts, the Authority has not received a commitment from any
airline to provide service at the Airport if the statutory
restriction on the length of Runway 2/20 is removed.

(Stip. #

59).
In 2009, a Memorandum of Agreement (“MOA”) was established
among the City of New Haven, the Town of East Haven, the
Authority and certain members of the General Assembly.
60).

(Stip. #

The MOA limits Runway 2/20 to the existing paved runway

length of 5,600 feet.

(Stip. # 61).

It also limits daily

commercial departures to thirty and annual emplanements to
180,000.

(Stip. # 61).

Section III of the MOA references a bill for adoption in
the 2009 Legislative Session that limited the length of the
runway, increased the number of members of the Authority’s Board
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of Directors to be appointed by the Town of East Haven and City
of New Haven related to the airport property.

(Stip. # 62),

Section III also called for additional appropriations for the
Authority in the two fiscal year budgets being considered in the
2009 Legislative Session that would have reduced the capital
bond commitment of the State to the Airport.

(Stip. # 62)

The bill reducing the capital bond authorization was
defeated and the restriction on the runway and the change in
board membership in the designated bill were adopted, but the
payment in lieu of taxes portion of the bill was not adopted and
$1.5 million of additional appropriations were approved, whereas
the MOA called for $2 million.

(Stip. # 62).

The items that

were not adopted in the 2009 Legislative Session have not been
adopted by subsequent General Assembly action.

(Stip. # 62).

Section IV of the MOA provides in pertinent part: “[T]his
agreement may be terminated by written notice by either the City
or the Town in the event

. . . (c) the State of Connecticut

fails to enact the Legislative Initiatives contained in Section
III of this Agreement in the 2009 Legislative Session.”
# 63).

(Stip.

To date, the City of New Haven has not taken steps to

invalidate the MOA.

The Authority does not appear to have the

power, pursuant to the MOA, to unilaterally terminate the MOA.
(Stip. # 64).

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The Connecticut Coastal Management Act discourages the
substantial expansion of existing airports within the coastal
boundary.

(Stip. # 64).

Two permits from the Connecticut

Department of Energy and Environmental Protection (“DEEP”) were
previously issued to the Authority for the construction of
runway safety areas.

One of the permits, the tidal permit,

states: “At no time shall the permittee modify the surfaces of
the RSAs including paving.”

The second permit, for disturbing

wetlands and water quality, requires a modification to the
permit from the DEEP if the safety areas are altered.

(Stip. #

66).
The FAA has indicated to the Authority that if it wishes to
continue with its proposed runway extension project, the
Authority must develop a joint action plan with DEEP addressing
the Agency’s concerns identified in the two previously issued
permits.

(Stip. # 67).

If Conn. Gen. Stat. §15-120j(c) is removed or invalidated,
the Authority intends to file an application seeking DEEP
approval to remove the conditions in the permits mentioned
above.

(Stip. # 68).

Increasing the length of Runway 2/20

would require the Authority to ensure that all new approach
surfaces are clear for approaching aircraft.

(Stip. # 69).

The

Authority is currently in the process of ensuring that such
surfaces are clear for a 6,601 foot runway.
15

(Stip. # 69).

The

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normal approval process for a runway extension requires: (a)
careful planning, including review of feasible alternatives; (b)
proper environmental analysis, consistent with federal
regulations; and (c) sufficient funding, including federal,
state and/or local sources.

(Stip. # 70).

The Airport Improvement Program (“AIP”) provides about $3.5
billion annually versus an estimated need of over $40 billion
over the next five years.

Accordingly, dollars must be

allocated to the highest national priorities that are eligible
and justified.

(Stip. # 71).

The Authority received

approximately $24 million from the FAA in 2008 for its runway
safety area project and has received over $40 million from the
FAA in the past twenty years.

(Stip. # 72).
DISCUSSION

I.

Article III Standing

The defendant argues that the plaintiff has not sustained
its burden of establishing the “injury in fact” necessary to
confer standing, thereby depriving the Court of jurisdiction
over this matter.

(Dkt. # 74 at 2).

Plaintiff argues, in

response, that it has sustained multiple legally cognizable
injuries, any one of which alone would satisfy the injury in
fact requirement of standing.

(Dkt. # 73 at 6).

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In the Court’s ruling on the motion to dismiss, the
undersigned found that the plaintiff’s pleadings had satisfied
the burden of establishing an injury in fact sufficient to
confer standing.

However the standard of proof for establishing

Article III standing is higher following a trial.

See Lujan v.

Defs. of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2137, 119
L. Ed. 2d 351 (1992)(“At the pleading stage, general factual
allegations of injury resulting from the defendant's conduct may
suffice, for on a motion to dismiss we ‘presum[e] that general
allegations embrace those specific facts that are necessary to
support the claim.’”)
Article III, § 2 of the United States Constitution
restricts federal courts to deciding “‘Cases’ and
‘Controversies.’”

Lujan, 504 U.S. at 559.

The “case-or-

controversy requirement is satisfied only where a plaintiff has
standing.”

Sprint Commc'ns Co., L.P. v. APCC Servs., Inc., 554

U.S. 269, 273 (2008).

“Three elements comprise the ‘irreducible

constitutional minimum’ of standing: (1) the plaintiff must have
suffered an injury-in-fact—an invasion of a legally protected
interest that is (a) concrete and particularized, and (b) actual
or imminent, not conjectural or hypothetical; (2) there must be
a causal connection between the injury and the challenged
conduct; and (3) it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
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decision.”

All. for Open Soc'y Int'l, Inc. v. U.S. Agency for

Int'l Dev., 651 F.3d 218, 228 (2d Cir. 2011), aff'd sub nom.
Agency for Int'l Dev. v. All. for Open Soc'y Int'l, Inc., 133 S.
Ct. 2321, 186 L. Ed. 2d 398 (2013).

“The party invoking federal

jurisdiction bears the burden of establishing these elements.”
Lujan, 504 U.S. at 561.
Plaintiff first argues that the Airport is injured by
virtue of the mere existence of Conn. Gen. Stat. §15-120j(c).
(Dkt. # 73 at 6-8).

Specifically, plaintiff argues that the

“statute’s existence is sufficient to confer standing on Tweed
because Tweed is currently injured by its inability to proceed
with an FAA and state approved runway extension project.”
# 73 at 7).

(Dkt.

Plaintiff further contends that this “injury can be

redressed by a decision declaring General Statutes §15-120j(c)
unconstitutional.

(Dkt. # 73 at 7).

The defendant does not reply directly to plaintiff’s
argument.

However, the defendant describes several obstacles to

lengthening Runway 2/20, apart from Conn. Gen. Stat. §15120j(c).

The defendant notes that the normal approval process

for a runway extension requires three things: “(a) careful
planning, including review of feasible alternatives; (b) proper
environmental analysis, consistent with federal regulations; and
(c) sufficient funding, including federal, state and/or local
sources.”

(Dkt. # 74 at 22).
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While the Authority had taken significant steps in planning
the proposed runway, including hiring Hoyle, Tanner & Associates
at its own expense to conduct a Preliminary Environmental
Assessment, plaintiff faces serious hurdles to securing FAA
approval as well as adequate funding.

(See Dkt. # 59, Stip. #

23).
Federal review and comment is necessary for any
construction project located within the ALP.
# 28).

(Dkt. # 59, Stip.

One of the initial steps under the applicable federal

regulations in such a project is to submit an Environmental
Assessment.

(Dkt. # 59, Stip. # 28).

The FAA has declined to

review and comment on the content of the Authority’s Preliminary
Environmental Assessment for more than two years.

(Dkt. # 59,

Stip. # 32).
The FAA is not proceeding with review of the Environmental
Assessment for a variety of reasons, including because the
Authority is in violation of several federal grant assurances
and regulations.

(Dkt. # 59, Stip. # 34).

Additionally, two

permits were previously issued by the DEEP for the construction
of runway safety areas.

(Dkt. # 59. Stip. # 66).

The FAA has

indicated to the Authority that if it wishes to continue with
its proposed runway extension project, the Authority must
develop a joint action plan with the DEEP addressing the
agency’s concerns identified in the two previously existing
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permits.

(Dkt. # 59, Stip. # 67).

Thus, the existence of Conn.

Gen. Stat. §15-120j(c) represents one of several factors
preventing the FAA from reviewing the Preliminary Environmental
Assessment.
Additionally, projects utilizing federal funding must be
both eligible and justified at the time of the investment,
including runway extensions.

(Dkt. # 59, Stip. # 73).

The

Airport Improvement Program provides about $3.5 billion annually
versus an estimated need of over $40 billion over the next five
years.

(Dkt. # 59, Stip. # 71).

Accordingly, dollars must be

allocated to the highest national priorities that are eligible
and justified.

(Dkt. # 59, Stip. # 71).

The Authority received approximately $24 million dollars
from the FAA in 2008 for its runway safety area project and it
has received approximately $40 million from the FAA in the past
twenty years.

(Dkt. # 59, Stip. # 73).

The defendant

emphasizes that the current circumstances are not equivalent to
those that existed in 2008, when the Authority received funding
for a project concerned with safety and where there was a
current enforcement action by the FAA pending against the
Airport.

(Dkt. # 74 at 23).

The defendant also notes that just because the FAA has
approved an ALP or Master Plan for an airport, as it has in this
case, it does not follow that the agency must provide funding to
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that airport to make that plan a reality.

(Dkt. # 74 at 23).

The defendant states that “the FAA’s discretion to fund airport
improvements remains subject to a ranking in which safety
concerns have the highest priority.”

(Dkt. # 74 at 23; trial

transcript at 134-35).
The Court is persuaded by the defendant’s arguments.

In light

of the fact that the Airport would have to remedy its violation
of several federal grant assurances and obtain DEEP approval
before proceeding with any runway expansion project, there does
not appear to be a direct causal relationship between the
statute and the plaintiff’s alleged injury.
Additionally, even if the Authority were to overcome these
obstacles, it is uncertain that the FAA would provide the
necessary funding for plaintiff to complete the proposed runway
project. For these reasons, the Court finds plaintiff’s argument
that it is injured by the mere existence of the statute to be
unpersuasive.
Plaintiff next argues that the statute has directly led to
inadequate revenue at the airport and chronically low service
levels, and that the evidence presented at trial proves this.
(Dkt. # 73 at 8).

Plaintiff contends that the dire financial

situation of the airport is tied to the chronically low services
levels and that the low service levels are “inextricably tied to
the current length of Runway 2/20.”
21

(Dkt. # 73 at 8).

Case 3:15-cv-01731-RAR Document 78 Filed 09/30/17 Page 22 of 48

Plaintiff claims that these injuries can be redressed by
invalidating Conn. Gen. Stat. §15-120j(c).

(Dkt. # 73 at 8).

Plaintiff states that over the last eight years the
Authority has been operating at a loss which has required annual
subsidies from the state and the City of New Haven. (Dkt. # 73
at 10; Exhibit B).

Since 2009, the Airport has experienced an

average annual operating loss of $1,800,000.
Dkt. # 59, Stip. # 58; Exhibit B).

(Dkt. # 73 at 10;

According to the testimony

of Mr. DeCoster, “the lengthening of the runway is the absolute
door opener in order to have a chance at improving the financial
condition of the airport.”

(Trial transcript at 99).

Mr. DeCoster also testified that if additional service were
brought to Tweed, “[i]t would absolutely increase direct and
indirect revenue and make a major impact on the deficit that
occurs today.”

(Trial transcript at 100).

According to

plaintiff, “[a] longer runway would permit Tweed to accommodate
new commercial service which would result in additional revenue
for the Airport, alleviate its annual operating losses and
significantly reduce state and local subsidies.”

(Dkt. # 73 at

12).
The defendant argues that the evidence fails to show that
the state statute has caused plaintiff the loss of current
business, and therefore plaintiff fails to show that it has
suffered an injury.

(Dkt. # 74 at 14).
22

The defendant notes

Case 3:15-cv-01731-RAR Document 78 Filed 09/30/17 Page 23 of 48

that “[w]hile evidence presented at trial shows that the runway
was 5,600 linear feet prior to the passage of Conn. Gen. Stat.
§15-120j(c) in 2009, no evidence has been presented suggesting
that service levels at the Airport have become chronically low
or lower since then.”

(Dkt. # 74 at 14).

Defendant also notes

that plaintiff’s witnesses failed to account for the service
levels at the Airport prior to 2009 or indicate whether there
has been or currently is a market demand for any new type of
commercial service to or from the airport.

(Dkt. # 74 at 141;

trial transcript at 129).
The Court finds that plaintiff’s failure to account for the
financial status of the airport prior to the passage of the
state statute in 2009 constitutes a significant problem.
Plaintiff must prove that the downturn in the Airport’s
financial situation is a direct result of the passage of Conn.
Gen. Stat. §15-120j(c) in order to show a causal relationship
between the statute and the alleged injury.
Plaintiff next argues that Tweed is unable to attract new
commercial services to the Airport as a result of Conn. Gen.
Stat. §15-120j(c).

(Dkt. # 73 at 12).

Plaintiff claims that

the evidence adduced at trial shows that the length of Runway
2/20 has already deterred at least one commercial carrier from
bringing service to Tweed, and that the Airport will be unable

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to attract new commercial service if Runway 2/20 is not
lengthened.
The parties stipulated to the fact that despite marketing
efforts and various attempts to attract new service, the
Authority has failed to attract a single new scheduled
commercial carrier since 2009.

(Stip. # 18).

The parties also

stipulated that during the six years that Mr. Reich has been
providing marketing services to the Airport, he has been in
touch with approximately ten different airlines with regard to
the possibility of bringing service to the Airport.
47).

(Stip. #

Nonetheless, Mr. Reich has been unable to convince a

single airline to commence service at the Airport.

(Stip. #

57).
Plaintiff argues that there is a direct link between the
Authority’s inability to attract new commercial service and the
length of Runway 2/20.

(Dkt. # 73 at 14).

Plaintiff notes that

in Mr. Reich’s experience, “the overriding issue with respect to
an airline choosing to provide service to a new destination is
economic viability.”

(Dkt. # 73 at 14).

Plaintiff claims that

runway length is an integral part of an airline’s economic
viability analysis, and that Tweed is effectively handicapped by
its inability to lengthen the runway because it prevents the
Airport from even getting a place at the table to negotiate with

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commercial air carriers.

(See Dkt. # 73 at 14-15; Dkt. # 59,

Stip. # 51; Reich Affid. at ¶11).
Nonetheless, plaintiff notes that it has received “real and
substantial interest from Allegiant Air, LLC in terms of
bringing commercial service to the airport.”

(Dkt. # 73 at 15;

see Exhibit 10). Mr. DeCoster testified that Allegiant Air is
one of the fastest growing, ultra-low cost fares in the
industry. (Trial transcript at 57). Plaintiff alleges Allegiant
cannot proceed with its analysis of Tweed as a potential market
specifically because Runway 2/20 is too short for Allegiant to
comfortably operate regularly scheduled commercial service with
its current fleet of planes.2

(Dkt. # 73 at 15-16).

The defendant argues that “the evidence does not support
the plaintiff’s contention that it has incurred specific lost
business opportunities due to the runway limitation in Conn.
Gen. Stat. § 15-120j(c).”

(Dkt. # 74 at 11).

The defendant

argues that Plaintiff’s Exhibit 10 does not prove a lost
business opportunity.

Exhibit 10 is a letter from Allegiant to

the FAA, in which Allegiant indicated its willingness to reopen
its analysis of whether it would be economically viable to bring

Mr. DeCoster gave his opinion on whether Allegiant Air might be willing to
bring service to Tweed if the runway is lengthened (trial transcript at 9495), it would have been helpful had Tweed called a representative from
Allegiant to testify on this subject. As Exhibit 10 indicates, Allegiant has
not yet gone forward with its analysis of Tweed as a potential market. There
is nothing in the record which establishes what factors Allegiant would want
to analyze or how Tweed would likely fare with respect to each such factor.
2

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regularly scheduled commercial service to Tweed if the runway
were lengthened.

The defendant notes that the “Allegiant letter

itself contains too many contingencies to show a specific lost
business opportunity for the plaintiff based on the length of
the runway.”

(Dkt. # 74 at 12; see Exhibit 10).

The defendant

also argues that “there is a complete dearth of evidence showing
that any airline has even considered whether regularly scheduled
commercial service to the Airport could or would be economically
feasible with a lengthened runway.”

(Dkt. # 74 at 15; trial

transcript at 73, 128-30). The Court agrees.
Citing In re Old Carco LLC, 470 B.R. 688, 692 (S.D.N.Y.
2012) (hereinafter “In re Old Carco”), the plaintiff argues that
it has standing to seek prospective declaratory relief before
exposing itself to actual injury.

(Dkt. # 73 at 17-19).

Plaintiff also argues that it does not have to show an actual
commitment from an air carrier in order to establish standing.
(See Dkt. # 73 at 17-19).

In In re Old Carco, a Chapter 11

debtor and a new entity that assumed liabilities of debtors and
their debtor-affiliates brought an action for declaratory and
injunctive relief against Colorado and Kentucky state officials
responsible for enforcing state automobile dealer laws.
Old Carco, 470 B.R. at 688.

In re

The plaintiffs alleged that certain

state statutes violated and were preempted by the Supremacy
Clause.

Id.

The state argued that the plaintiffs lacked
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standing because they had not yet suffered an injury.

Id. at

697.
In finding that the plaintiffs established standing, the
Court noted that “[e]nforcement of the Kentucky statute would
cause New Chrysler to sustain an injury that could be redressed
by this decision.”

In re Old Carco LLC, 470 B.R. at 697.

The

Court quoted MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118
(2007), in which that Court held that “the Declaratory Judgment
Act permits a plaintiff to seek prospective declaratory relief
rather than face exposure to liability or injury before seeking
remedial relief.”

Id.

The Court finds that this case is distinguishable from In
re Old Carco.

In In re Old Carco, the Court was able to

precisely identify the likely injury.

More specifically, the

Court stated that “New Chrysler will either have to forego
selling its products within ten miles of a rejected dealer for
ten years or will have to contract with the dealers whose
previous contracts were rejected during the bankruptcy
proceeding.”

In re Old Carco, 470 B.R. at 697.

In this case,

plaintiff argues that the statute is preventing the Airport from
attracting new commercial service, but there is no evidence in
the record that any airline, including Allegiant, has indicated
that it would commit to bringing service to Tweed if the runway

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is lengthened.

(Dkt. # 59 at 14; trial transcript at 73, 77,

128-30).
In In re Old Carco, there was also a direct causal
relationship between the injury and the state statute, and the
court explicitly found that the injury could be redressed by
invalidating the statute.

Id. at 697. (“Enforcement of the

Kentucky statute would cause New Chrysler to sustain an injury
that could be redressed by this decision).

In this case,

plaintiff has failed to show a direct causal relationship
between the length of the runway and the Airport’s inability to
attract new commercial service.3

(See trial transcript at 128).

Likewise, without a clear commitment from any air carrier that
it will bring service to the Airport if the runway is
lengthened, it is not clear that plaintiff’s alleged injury
would be redressed in the absence of Conn. Gen. Stat. § 15120j(c).

(See Exhibit 10).

For these reasons, the Court finds

that In Re Old Carco is distinguishable from the current case.
The Court finds the defendant’s arguments to be persuasive.
The parties stipulated that notwithstanding marketing efforts,
the Authority has not received a commitment from any airline to
provide service at the Airport if the statutory restriction on

3

Mr. DeCoster testified that he had not conducted any independent market
demand studies that analyzed other potential destinations for commercial
service from Tweed, or that analyzed Tweed as a potential destination from
other airports. (Trial transcript at 128).

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the length of Runway 2/20 is removed.

(Dkt. # 59 at 14).

The

Court finds that without an express commitment that a carrier
will bring service to the airport if the runway length is
increased, the plaintiff cannot show a causal connection between
the statute and the alleged injury.
Plaintiff next argues that the airport cannot comply with
federal grant requirements due to the state statute’s
restriction on the length of Runway 2/20.

(Dkt. # 73 at 19).

Plaintiff notes that whenever Tweed accepts federal funds, it
agrees to various grant assurances which, among other things,
require compliance with a long list of federal statutes and
regulations directed to airport facilities and operations.
(Dkt. # 73 at 20).

Non-compliance by an airport such as Tweed

can result in an enforcement action by the FAA.
20, See Dkt. # 59, Stip. # 36).

(Dkt. # 73 at

The defendant argues that “the

Authority, not the state, has been the party responsible for the
Authority’s failure to comply with federal grant assurances and
related federal statutes since the enactment of Conn. Gen. Stat.
§15-120j(c) in 2009.”

(Dkt. # 74 at 16).

Plaintiff notes that the “FAA has identified several
federal obligations and grant assurances that Tweed is unable to
comply with as a result of General Statutes § 15-120j(c).”
(Dkt. # 73 at 20).

In fact, the FAA has not commented directly

on Conn. Gen. Stat. § 15-120j(c), but it has commented on a
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Case 3:15-cv-01731-RAR Document 78 Filed 09/30/17 Page 30 of 48

Memorandum of Agreement (“MOA”) that was established among the
City of New Haven, the Town of East Haven, the Authority and
certain members of the Connecticut General Assembly.

(Dkt. #

59, Stip. # 60).
The FAA noted its concern regarding the runway length
limitation in the MOA4, but it also noted its concern regarding
potential violations of the Airport Noise and Capacity Act of
1990 (“ANCA”) and the Anti-Head Tax Act.

(Def. Ex. A).

The

defendant emphasizes that this agreement was entered into
voluntarily by the Authority and that no evidence was presented
at trial that the Authority has taken any actions to address any
of the FAA’s concerns regarding federal grant assurances or
violations of the ANCA or the Anti-Head Tax Act.

(Dkt. # 74 at

20).
The FAA has also expressed concern with the taxiways at the
Airport.

The parties stipulated in their joint trial memorandum

that the current locations and dimensions of the taxiways are
not in compliance with federal regulations in terms of their
distance to Runway 2/20.

(Dkt. # 59, Stip. # 39).

The FAA has

given the Authority until May 6, 2021 to redesign and
reconstruct its taxiways, including realignment of Taxiway A, to
bring the Airport into compliance with federal design standards.

The MOA limits Runway 2/20 to the existing paved runway length of 5,600
linear feet. (Dkt. # 59, Stip. # 61).
4

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Case 3:15-cv-01731-RAR Document 78 Filed 09/30/17 Page 31 of 48

(Dkt. # 59, Stip. # 43).

Plaintiff suggests that the taxiways

might be altered as a part of the proposed runway extension
project so that they are in compliance with federal law.
# 59, Stip. # 39).

(Dkt.

But the Authority had proposed a nonstandard

parallel taxiway as part of its operation safety improvements.
(Dkt. # 74 at 17; See also trial transcript at 31).
The defendant argues that it is “disingenuous for the
plaintiff to claim that the runway limitation statute has
prevented it from complying with federal grant assurances . . .
when the plaintiff itself has proposed a nonstandard taxiway in
contradiction of the FAA’s requirement to create standard
taxiways in 2012.

(Dkt. # 74 at 18).

The Court finds that the plaintiff has failed to provide
evidence of a causal relationship between Conn. Gen. Stat. §15120j(c) and the Authority’s alleged inability to comply with
federal grant requirements.

The evidence suggests, instead,

that the Authority’s failure to comply with federal grant
requirements is for the most part self-imposed.
Finally, plaintiff argues that the only commercial aircraft
currently servicing the Airport will soon be retired, leaving
Tweed with no commercial service.

(Dkt. # 73 at 22).

Plaintiff

cites to a report prepared by John DeCoster, an expert witness

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who testified on behalf of the plaintiff.5

(Pl. Ex. # 13).

Mr

DeCoster indicates in his report that the Dash-8 is “nearing the
end of its useful life” at which point “a major overhaul of the
airport is required.”

(Pl. Ex. # 13 at 3).

However, he opined

that since the “economics for such an overhaul [are] no longer
supportable,” the aircraft will be retired from service.

(Pl.

Ex. # 13 at 3).
According to Mr. DeCoster’s report, the “logical aircraft
that will replace the Dash 8 is the 50 seat regional jet, either
the Bombardier CJ200 or the Embraer 145.”

(Pl. Ex. # 13 at 3).

However, according to Mr. DeCoster, these aircraft are also
reaching their “cycle limits” and are being phased out.
Ex. 13).

(Pl.

According to Mr. DeCoster’s report, American, Delta

and United have all indicated that once their 50 seat jets
“reach their maximum cycles or if fuel increases significantly,
the aircraft will be retired because the flights will no longer
be profitable.”

(Pl. Ex. # 13 at 3).

Mr. DeCoster also noted that the desired minimum runway
length for the 50 seat regional jets is 6,200 linear feet in
order to avoid payload hits (according to the manufacturer’s
specifications, 5,600 linear feet is the lowest allowable

The defendant objected to Mr. DeCoster’s testimony, arguing it was based on
insufficient and unreliable evidence. (Trial transcript at 76-77). In the
interest of caution and because this was a bench trial, the Court overruled
the objection and allowed the testimony.
5

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condition).

(Pl. Ex. # 13 at 3).

According to Mr. DeCoster,

once the 50 seat regional jet is no longer available, the next
size aircraft is the 70/76 regional jet, which likely requires a
minimum runway length of 6,220 to 6,600 linear feet.
13 at 4).

(Pl. Ex. #

Thus, plaintiff argues that “there is a real and

distinct possibility that the Dash 8, Bombardier CJ200 and
Embraer 145 will be retired at or around the same time, leaving
Tweed with absolutely no commercial service.”

(Dkt. # 73 at

23).
The defendant argues in response that the plaintiff has
failed to show that the Dash 8 will be phased out in the near
future, that a replacement plane will need a longer runway, or
that regularly schedule commercial service at the airport is
jeopardized and may be terminated.

(Dkt. # 74 at 7).

The

defendant notes that on cross examination, Mr. DeCoster
testified that he does not know when the American Airlines Dash
8 will be retired.6
119).

(Dkt. # 74 at 8, See trial transcript at

The defendant further notes that “Mr. DeCoster agreed at

trial that he ‘cannot conclude that regularly scheduled
commercial service is jeopardized at the moment.’”

(Dkt. # 74

at 9; trial transcript at 119-20).

On cross examination, Mr. DeCoster also testified that American Airlines
could service Tweed with either the Bombardier CJ 200 or the Embraer 145
after the Dash 8 is retired and nothing in his report indicates that the use
of those two jets would not be profitable for American Airlines. (Trial
transcript at 112-14; 122-23).
6

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The defendant argues that “the plaintiff’s claim of a
‘possible future injury’ arising from an unknown phase out date
of both the Dash 8 and the two regional replacement jets does
not satisfy Article III requirements necessary to establish
injury in fact since such future possible events are not
‘threatened injur[ies]’ that are ‘certainly impending.’”
# 74 at 10).

(Dkt.

Relying upon the Second Circuit’s ruling in Shain

v. Ellison, 356 F.3d 211, 216 (2d Cir. 2004), the defendant
argues that plaintiff’s argument is based upon “an accumulation
of inferences” and is “too speculative and conjectural.”
As a result, the defendant urges the Court to reject the
“plaintiff’s hypothetical scenario that if the only type of
aircraft currently providing service to the Airport will soon be
phased out, and if there are no replacement planes that can
operate on the existing runway, and if new planes will need a
longer runway, and if that development jeopardizes commercial
service at the Airport, the consequence will be that enforcement
of Conn. Gen. Stat. § 15-120j(c) may terminate all commercial
service ‘someday’ in the future.”

(Dkt. # 74 at 11).

While the Court is quite sympathetic to plaintiff’s
potential situation, the Court is not persuaded that Tweed faces
an imminent threat that the only commercial aircraft currently
servicing the airport will be retired, thereby leaving Tweed
with no commercial service.

Plaintiff’s witness, Mr. DeCoster,
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testified on cross-examination that American Airlines has been
servicing Tweed since 2009 with no interruptions, and that
American Airlines finds this service to be profitable.

(Trial

transcript, p. 105, lines 18-23; p. 107, lines 10-14).

Mr.

DeCoster also testified that he does not know when the Dash 8
would be retired.

(Trial transcript at 118-19). On cross

examination, Mr. DeCoster testified that in publications that he
has “read from airlines, they are speculating, …, that by the
end of the decade, they will have reached their cycle lives.”7
Thus, plaintiff has failed to offer a definitive end date,
or even a definite time frame, for the useful life of the Dash
8.8 (See Dkt. # 73 at 23; trial transcript at 69-70). (Trial
transcript at 114).

Plaintiff also cannot identify a definitive

end date for the useful life of the likely replacement jets.9
(See Dkt. # 73 at 23; trial transcript at 69-70, 117-19).

7

Mr. DeCoster’s report did not contain or attach any written information from
American Airlines or any other airlines discussing when the Dash 8 will be
retired. (Trial transcript at 68). Additionally, Mr. DeCoster has not
conducted any independent analysis on the subject. (Trial transcript 69).
During the trial, defense counsel asked Mr. DeCoster, “[s]o isn’t it true
that the facts that you have to offer this court on the Dash 8 phaseout are
that someday in the future the Dash 8 will be phased out but you don’t know
when, correct?” Mr. DeCoster replied, “Correct.” Defense counsel then asked
about the two logical replacement jets, “[a]nd isn’t it true that your report
does not identify exactly when [the Bombardier CJ200 and the Embraer 145]
will reach the end of their useful lives?” Mr. DeCoster replied, “Yes.”
(Trial transcript at 69).
8

9

Mr. DeCoster’s report did not contain any written information from any of the
airlines indicating when the two replacement jets will be retired from
service and Mr. DeCoster did not conduct any independent analysis on that
subject. (Trial transcript at 69-70).

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Plaintiff’s argument that “there is a real and distinct
possibility that the Dash 8, Bombardier CJ200 and Embraer 145
will be retired at or around the same time,” falls short without
actual evidence.

“Abstract injury is not enough . . . [i]t must

be alleged that the plaintiff ‘has sustained or is immediately
in danger of sustaining some direct injury’ as the result of the
challenged statute or official conduct.”

O'Shea v. Littleton,

414 U.S. 488, 494 (1974).
For these reasons, the Court finds that the Authority has
failed to prove that it faces an imminent threat of losing all
commercial service.
II.

Preemption

Plaintiff argues that Conn. Gen. Stat. §15-120j(c) violates
the Supremacy Clause of the United States Constitution.
75 at 10).

(Dkt. #

Specifically, plaintiff argues that the statute is

preempted by three federal statutes: the Federal Aviation Act
(“FAAct”), the Airline Deregulation Act (”ADA”), and the Airport
and Airways Improvement Act (“AAIA”).

(Dkt. # 73 at 25).

The

defendant argues, in response, that the runway limitation in
Conn. Gen. Stat. §15-120j(c) does not violate the FAAct, the ADA
or the AAIA.

(Dkt. # 74 at 24).

“It is a familiar and well-established principle that the
Supremacy Clause, U.S. Const., Art. VI, cl. 2, invalidates state
laws that ‘interfere with, or are contrary to,’ federal law.”
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Hillsborough Cty., Fla. v. Automated Med. Labs., Inc., 471 U.S.
707, 712 (1985) (citations omitted).
express or implied.”

“Preemption can be either

Air Transp. Ass'n of Am., Inc. v. Cuomo,

520 F.3d 218, 220 (2d Cir. 2008).
“In general, three types of preemption exist: (1) express
preemption, where Congress has expressly preempted local law;
(2) field preemption, ‘where Congress has legislated so
comprehensively that federal law occupies an entire field of
regulation and leaves no room for state law’; and (3) conflict
preemption, where local law conflicts with federal law such that
it is impossible for a party to comply with both or the local
law is an obstacle to the achievement of federal objectives.”
New York SMSA Ltd. P'ship v. Town of Clarkstown, 612 F.3d 97,
104 (2d Cir. 2010).
intent of Congress.”
A.

“The key to the preemption inquiry is the
Id.

The FAAct

Plaintiff does not argue in its post-trial brief that Conn.
Gen. Stat. §15-120j(c) is directly preempted by the FAA, and
there is no evidence in the record to support direct preemption.
Plaintiff instead argues that Conn. Gen. Stat. §15-120j(c) is
impliedly preempted by the FAAct under a theory of field
preemption.

(Dkt. # 73 at 26).

Plaintiff contends that the

“evidence at trial establishes that runway length is indeed a
component part of the field of airline safety,” and is therefore
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part of a field that is completely occupied by the federal
government.

(Dkt. # 73 at 26).

The defendant argues that the plaintiff’s “claim that Conn.
Gen. Stat. §15-120j(c) attempts to regulate a field occupied by
the federal government, aviation safety and service capacity is
misplaced,” and that “[n]o evidence has been presented showing
that the runway limitation statute interferes with the
Authority’s ability to comply with federal aviation safety
standards.”

(Dkt. # 74 at 26).

The defendant also attempts to

distinguish the current case from Tweed-New Haven Airport Auth.
v. Town of East Haven, Conn., 582 F. Supp. 2d 261 (D. Conn.
2008)(Hall, J.)(hereinafter “Tweed v. Town of East Haven”), a
case that is integral to plaintiff’s argument.
In Tweed v. Town of East Haven, the plaintiff brought an
action against the Town of East Haven, seeking a declaratory
judgment that the Town’s regulations, which interfered with the
Airport’s “runway project,” were preempted by federal law.

The

purpose of the runway project was to put Tweed-New Haven Airport
in compliance with the FAA’s current runway safety area (“RSA”)
requirements.

Id. at 270.

The district court found that “Congress intended to occupy
and regulate the field of airline safety,” and that this power
extends to “grounded planes and airport runways.”

Id. at 268.

The court ruled that “because the TSAs are being created for the
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purpose of meeting the FAA safety standards and the Runway
Project is being done within Authority property, the court finds
that the East Haven defendants’ regulations, as applied to the
Runway project, are preempted by the FAAct.”

Id.

The Court agrees defendant’s argument that Conn. Gen. Stat.
§15-120j(c) does not interfere with plaintiff’s ability to
comply with federal aviation safety standards.

The Court also

finds that the current case is distinguishable from Tweed v.
Town of East Haven.
The “runway project” in Tweed v. Town of East Haven was
undertaken in response to an FAA enforcement action for the
purpose of complying with FAA safety standards.

In the current

case, there is no pending FAA enforcement action.
Stip. # 42).

(Dkt. 59,

While the airport is not in compliance with FAA

standards due to non-standard taxi-way geometry, there is no
evidence that extending the runway is necessary to fix this
problem or for the Authority to come into compliance with FAA
safety guidelines.

(Dkt. # 59, Stip. ¶43).

Thus, plaintiff’s argument that the “non-standard
separation between the taxi-way and the runway could be brought
into compliance as part of the proposed runway extension
project,” is unavailing.

(Dkt. 59, Stip. # 39).

Plaintiff has

failed to present evidence that the runway length in this
instance is a component part of the field of airline safety.
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Plaintiff also argues that Conn. Gen. Stat. §15-120j(c) is
preempted by the FAAct under a theory of conflict preemption.
(Dkt. # 73 at 27).

Plaintiff argues that “conflict preemption

does not just hinge entirely on whether the state law makes it
impossible to comply with the federal law,” but it also arises
when the state law stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress.
(Dkt. # 73 at 27, citing Hillsborough County, 471 U.S. at 713;
see also California v. ARC Am. Corp., 490 U.S. 93, 100-01
(1989).
Plaintiff contends that Runway 2/20 “remains too short for
almost all commercial aircraft to operate regularly scheduled
service in a safe and commercially reasonable manner.”
73 at 27).

(Dkt. #

Plaintiff also argues that Conn. Gen. Stat. §15-

120j(c) prevents it from complying with federal grant
requirements.

(Dkt. # 73 at 27).

In response, the defendant

argues that there is no evidence showing that the statute has
directly or indirectly caused the plaintiff to fail to comply
with any federal safety regulations.

(Dkt. # 74 at 25).

As noted above, “[c]onflict preemption arises when “local
law conflicts with federal law such that it is impossible for a
party to comply with both or the local law is an obstacle to the
achievement of federal objectives.”
612 at 104.

New York SMSA Ltd. P'ship,

There is no pending enforcement action by the FAA
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against the Authority.

(Dkt. # 59, Stip. ¶ 42).

The current

locations and dimensions of the taxiways are not in compliance
with regulations in terms of their distance from Runway 2/20,
but this problem can be fixed without extending the length of
Runway 2/20.

(Dkt. 59, Stip. # 39).

Thus, there is no evidence

in the record showing that it is impossible for the Authority to
comply with both Conn. Gen. Stat. §15-120j(c) and the FAAct.
There is also no evidence in the record that Conn. Gen.
Stat. §15-120j(c) stands as an obstacle to the achievement of
federal objectives.

Plaintiff argues that the runway “remains

too short for almost all commercial aircraft to operate
regularly scheduled service in a safe and commercially
reasonable manner.” (Dkt. # 73 at 27).

However, the airport is

currently served by American Airlines with a Dash 8 turboprop
aircraft that seats between 37 and 40 passengers.

(Pl. Ex. 13).

According to a letter written by Mr. DeCoster, who testified on
behalf of the plaintiff, “[t]he current runway length is
sufficient to accommodate that aircraft in most weather
conditions without a payload hit.”

(Pl. Ex. 13).

American’s

continued service shows that it is possible to operate regularly
scheduled service in a safe and commercially reasonable manner.
(Trial transcript at 105-7, 122-23).
For the aforementioned reasons, the Court finds that Conn.
Gen. Stat. §15-120j(c) is not preempted by the FAAct.
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B.

The ADA

The Airline Deregulation Act “ADA” was enacted in 1978
based on Congress’s determination that “‘maximum reliance on
competitive market forces’ would best further ‘efficiency,
innovation, and low prices’ as well as ‘variety [and] quality
... of air transportation services.’”

Morales v. Trans World

Airlines, Inc., 504 U.S. 374, 378, 112 S. Ct. 2031, 2033, 119 L.
Ed. 2d 157 (1992).

The ADA includes an express preemption

provision that prohibits states from enforcing any law
ʺ’relating to rates, routes, or services’ of any air carrier.”
Morales, 504 U.S. at 378–79.

Under the ADA, “’air carrier’

means a citizen of the United States undertaking by any means,
directly or indirectly, to provide air transportation.”
U.S.C.A. § 40102(2) (West).

49

Airport is defined separately as “a

landing area used regularly by aircraft for receiving or
discharging passengers or cargo.

49 U.S.C.A. § 40102(9) (West).

Plaintiff argues that Conn. Gen. Stat. §15-120j(c) is
expressly preempted by the ADA because the “restriction on the
Length of Runway 2/20 is related to ‘a price, route or service
of an air carrier.’”

(Dkt. # 73 at 28).

The defendant argues

that the ADA does not apply because the express preemption
clause in the ADA specifically applies to an “air carrier” as

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opposed to an airport.

(Dkt. # 74 at 34).10

Plaintiff contends

that a state law does not have to specifically target an air
carrier in order to be preempted by the ADA, as long as it is
related to the price, route or service of an air carrier.

(Dkt.

# 73 at 28).
Based upon the plain language of the ADA, the Court finds
that the express preemption provision at issue applies
specifically to air carriers, as opposed to airports, which are
defined separately in the statute.

The Court further finds that

the Authority lacks standing to bring this claim on behalf of a
third party.

“[A] party ‘generally must assert his own legal

rights and interests, and cannot rest his claim to relief on the
legal rights or interests of third parties.’”
Tesmer, 543 U.S. 125, 129, (2004).

Kowalski v.

Therefore, plaintiff cannot

assert legal rights on behalf of Allegiant, or any other
hypothetical air carrier who might bring service to the Airport.
Even if the preemption provision applied in this case,
plaintiff still has not shown that Conn. Gen. Stat. §15-120j(c)
relates to rates, routes or services.

10

“State enforcement

“It is worth emphasizing that it is the effect on the ‘price, route
or service’ of an air carrier — not an airport—that is prohibited by
the ADA.” Goodspeed Airport, LLC v. E. Haddam Inland Wetlands &
Watercourses Comm'n, 681 F. Supp. 2d 182, 207 (D. Conn. 2010)(Kravitz,
J.), aff'd, 634 F.3d 206 (2d Cir. 2011).

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actions having a connection with or reference to airline ‘rates,
routes, or services’ are pre-empted” under the ADA.

Morales v.

Trans World Airlines, Inc., 504 U.S. 374, 384, 112 S. Ct. 2031,
2037, 119 L. Ed. 2d 157 (1992).

However, the Court is hard

pressed to find any clear connection between Conn. Gen. Stat.
§15-120j(c) and air carrier rates, routes or services.
Plaintiff argues that the statute relates to the route and
service of an air carrier because it is preventing Allegiant
from bringing service to the Airport and it is preventing the
Authority from attracting new service.

(Dkt. # 73 at 30).

argument is not supported by the evidentiary record.

This

Allegiant

has not committed to bringing service to the Airport, even if
the runway is extended.

(See P. Ex. # 10, “Allegiant letter”).

And, American Airlines continues to operate the same service
that it operated prior to the passage of Conn. Gen. Stat. §15120j(c).

(Trial transcript at 119).

There is no evidence in

the record to suggest that American Airlines would expand its
service if the runway were extended.

Furthermore, the Court

cannot find preemption based upon hypothetical future carriers
who might want to bring service to Tweed at some undisclosed
future date.
For these reasons, the Court finds that the express
preemption provision in the ADA does not apply in this case, and

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even if it did apply, the Court finds that Conn. Gen. Stat. §15120j(c) is not preempted by the ADA.
C.

The AAIA

The Airport and Airway Improvement Act (“AAIA”) “serves the
purpose of providing federal funding to airport construction
projects to promote a wide variety of policy goals.”

City of

Cleveland, Ohio v. City of Brook Park, Ohio, 893 F. Supp. 742,
749 (N.D. Ohio 1995).

“The Act imposes no requirements, nor

does it authorize the promulgation of any regulations, that
govern airports generally or that govern projects for which no
federal funding is being sought.”

Id. at 752.

Plaintiff argues that Conn. Gen. Stat. §15-120j(c) is
impliedly preempted by the AAIA under theories of field and
conflict preemption.

Plaintiff notes that the “comprehensive

statutory scheme of the AAIA demonstrates the supremacy of
federal interest in commercial air service expansion,
particularly with regard to development of airport facilities.
(Dkt. # 73 at 31).

Plaintiff states that “the AAIA, in

conjunction with the FAAct and ADA, demonstrates the dominance
of the federal interest in aviation safety and airport
improvement projects and requires the FAA to develop and
maintain a national plan of integrated airport systems.”
# 73 at 31).

45

(Dkt.

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Plaintiff also argues that Conn. Gen. Stat. §15-120j(c)
directly conflicts with the AAIA because it serves as an
impediment to the federal government’s and Tweed’s objective of
expanding service, to the implementation of the Master Plan
adopted by the FAA that contemplates the expansion of Runway
2/20 and to increasing compliance with federal safety standards.
(Dkt. # 73 at 31).
The defendant argues that the AAIA does not fully occupy
the field of aviation safety and service capacity.
at 38).

(Dkt. # 74

Instead, “the AAIA provides a mechanism through which

the FAA is to determine whether to provide federal funding to
airport development and improvement projects.”
quoting City of Cleveland, 893 F.Supp. at 752).

(Dkt. # 74,
The defendant

also argues that there is no actual conflict between Conn. Gen.
Stat. §15-120j(c) and the AAIA.

This is because “the AAIA does

not set regulatory requirements for the construction of airport
runways; it only sets requirements for those wishing to secure
federal funding for that type of project.”

(Dkt. # 74 at 36).

The Court does not find that Conn. Gen. Stat. §15-120j(c)
is preempted by the AAIA under a theory of field preemption.
Plaintiff does not offer any case law in support of its legal
conclusion that the AAIA occupies the field of aviation safety
and airport improvement projects.

Unlike the FAAct, which “was

enacted to create a ‘uniform and exclusive system of federal
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regulation’ in the field of air safety,” the AAIA does not
impose any requirements or authorize the promulgation of federal
regulations, unless funding is being sought.

See Air Transp.

Ass'n of Am., Inc., 520 F.3d at 224.
Regarding the issue of conflict preemption, the Court again
finds that the AAIA does not impose affirmative obligations
unless an Airport is seeking federal funding.
obligated to seek federal funding.

Plaintiff is not

Thus, plaintiff has not

demonstrated that it is impossible to adhere with Conn. Gen.
Stat. §15-120j(c) and the AAIA.
For the reasons set forth above, the undersigned finds that
Conn. Gen. Stat. §15-120j(c) is not preempted by the AAIA.
CONCLUSION
For the reasons set forth herein, defendant’s declaratory
judgment action is DENIED.
This is not a recommended ruling.

The consent of the

parties allows this magistrate judge to direct the entry of a
judgment of the district court in accordance with the Federal
Rules of Civil Procedure.

Appeals can be made directly to the

appropriate United States court of appeals from this judgment.
See 28 U.S.C. § 636(c)(3).

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SO ORDERED at Hartford, Connecticut, this 30th day of
September, 2017.

_________/s/___________________
Robert A. Richardson
United States Magistrate Judge

48