Phoenix Grounded: The Impact of the Supreme Court's Changing Preemption Doctrine on State and Local Impediments to Airport Expansion

By Berger, Jeffrey A. | Northwestern University Law Review, Winter 2003 | Go to article overview

Phoenix Grounded: The Impact of the Supreme Court's Changing Preemption Doctrine on State and Local Impediments to Airport Expansion


Berger, Jeffrey A., Northwestern University Law Review


INTRODUCTION

Amidst its gradual contouring of a decentralized federal structure, the Supreme Court has subtly reshaped the principles of federal preemption of state laws. One might expect that the Court's shift would consistently favor states at the expense of the federal government. Yet surprisingly, the opposite is often true. Recognizing the importance of federal control in some areas of national consequence, the Court in the past two years retreated from a presumption against the federal preemption of state laws and reinforced the strength and uniformity of some federal regulatory schemes. This Comment explores the impact of this doctrinal shift on the national air transportation system, focusing particularly on airport expansion, an area in which states and local governments have engaged in large-scale legal battles. The national air transportation system1 may be the most national of all federal regulatory schemes, as the chief capital of the industry-the air-craft-are by nature divorced from any single locality. For this reason, the various federal statutes governing air transportation emphasize the dominant role of the federal regulatory system, as administered by the Federal Aviation Administration (FAA) and the Department of Transportation (DOT). Yet despite this federal presence, state and local governments, because of their historical control over land use, still possess significant powers on critical issues related to the air transportation system. Most importantly, state and local governmental bodies can block airport expansion, which can seriously undermine the efficient functioning of the federal air transportation system that relies on large hub airports for the continued vitality of the network. It seems odd that local governments would have this power when the notion of a national air transportation system cannot completely coexist with total local control over airports. Significantly, the Supreme Court's changing preemption doctrine may sharply impact local government's ability to impede the expansion of airports.

At present, the air transportation system of the United States is in turmoil. A number of different problems plague the system. For example, breaches of security at the nation's biggest airports is of the utmost concern, particularly following the September 11th attacks. Additionally, several of the airlines are in dire financial straits, including U.S. Air, which filed for bankruptcy in August 2002, and United Airlines, the second largest carrier in the United States.2 This Comment focuses on two interrelated concerns: overcapacity and lack of airport expansion. Overcapacity causes serious delays, and the resulting congested terminals and skyways heighten risks of security breaches and mid-air or ground accidents. The impacts of congestion are visible, as in the year 2000, there were 431 runway incursions (a 34% increase from the year before), which are defined as incidents on the runway that create a collision hazard. There were also sixty close-calls, which are runway incursions that barely avoid a collision.3

Delays at the top twenty-five airports in the United States reached a critical level in the past three years. In 2000, the FAA recorded over 450,000 total delays, which was the highest recorded number ever and which represented a 20% increase from 1999.4 Of these delays, approximately 14% resulted from capacity problems, a 42% increase from 1999.5 Many of the nation's busiest airports are plagued by delays, including New York's LaGuardia (15% of all flights delayed), Newark International (8%), and Chicago's O'Hare Airport (6.3%).6

Several factors cause these delays. As overall airport volume increases and approaches the passenger and aircraft capacity of the airport, delays correspondingly increase.7 Delays also increase at heavy volume times.8 For example, an examination of the nation's twenty-eight largest airports showed that while only 7% of delays occurred early in the morning, 31% of delays occurred at 10 p. …

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