Respondents Brief — Friends of Merrymeeting Bay, et al., Petitioners v. Central Maine Power Company
Supreme Court briefJun 8, 2022
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No. 21-1346
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------FRIENDS OF MERRYMEETING BAY, KATHLEEN
MCGEE, ED FRIEDMAN, and COLLEEN MOORE,
Petitioners,
v.
CENTRAL MAINE POWER COMPANY,
Respondent.
---------------------------------♦--------------------------------On Petition For Writ Of Certiorari To
The Supreme Judicial Court Of Maine
---------------------------------♦--------------------------------BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI
---------------------------------♦--------------------------------JOSHUA D. DUNLAP
Counsel of Record
PIERCE ATWOOD LLP
Merrill’s Wharf
254 Commercial Street
Portland, Maine 04101
jdunlap@pierceatwood.com
(207) 791-1100
Counsel for Respondent
Central Maine Power Company
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COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTION PRESENTED
Whether the Federal Aviation Act and its detailed
regulatory scheme preempts a state law nuisance action seeking to impose liability for the use of airspace
safety measures that the Federal Aviation Administration included as an express condition for issuing a no
hazard determination concerning the construction of
two 240-foot tall utility towers.
ii
CORPORATE DISCLOSURE STATEMENT
Pursuant to Sup. Ct. R. 29.6, Respondent Central
Maine Power Company hereby states that Central
Maine Power Company’s common stock is owned by
Avangrid, Inc., through wholly owned subsidiaries
Avangrid Networks, Inc. and CMP Group, Inc. Avangrid, Inc. is a publicly held corporation listed on the
NYSE (NYSE:AGR). Iberdrola, S.A., a corporation
(sociedad anónima) organized under the laws of the
Kingdom of Spain, directly owns 81.5% of outstanding shares of Avangrid, Inc. common stock. The shares
of Iberdrola, S.A. are listed in the Madrid, Bilbao,
Barcelona and Valencia stock exchanges. Iberdrola,
S.A. has an American Depositary Receipts program
(OTCMKTS: OBDRY). No other entities or individuals
own 10% or more of the common stock of Central
Maine Power Company.
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED...................................
i
CORPORATE DISCLOSURE STATEMENT ......
ii
TABLE OF AUTHORITIES .................................
iv
INTRODUCTION ................................................
1
STATEMENT OF THE CASE..............................
2
REASONS FOR DENYING THE PETITION ......
5
I.
II.
The Law Court’s decision has no precedential weight ..................................................
5
Petitioners have identified no significant
question regarding the merits of the Law
Court’s holding that field preemption bars
Petitioners’ state law nuisance claim ........
6
A. The Law Court’s decision is consistent
with uniform federal precedent recognizing that the Act occupies the field
of airspace safety .................................
7
B. The Law Court’s decision does not
harm the structure of the Act.............. 12
C. The Law Court’s decision does not distort federal-state relations .................. 16
III.
Because the Law Court’s decision can be
affirmed based on conflict preemption,
this case does not provide an appropriate
vehicle to address Petitioners’ field preemption arguments.................................... 17
CONCLUSION..................................................... 21
iv
TABLE OF AUTHORITIES
Page
CASES
Abdullah v. Am. Airlines, Inc., 181 F.3d 363 (3d
Cir. 1999) ...................................................................8
Aircraft Owners and Pilots Ass’n v. Fed. Aviation
Admin., 600 F.2d 965 (D.C. Cir. 1979) ....................13
Air Line Pilots Ass’n Int’l v. Dep’t of Transp., 446
F.2d 236 (5th Cir. 1971) ...........................................13
Air Line Pilots Ass’n Int’l v. Quesada, 276 F.2d
892 (2d Cir. 1960) ......................................................8
Arizona v. United States, 567 U.S. 387 (2012) ... 6, 7, 18
BFI Waste Sys. of N. Am., Inc. v. Fed. Aviation
Admin., 293 F.3d 527 (D.C. Cir. 2002) ....................13
Bieneman v. City of Chicago, 864 F.2d 463 (7th
Cir. 1988) ............................................................. 8, 11
Big Stone Broad., Inc. v. Lindbloom, 161
F. Supp. 2d 1009 (D. S.D. 2001) ........................ 12, 13
Buckman v. Plaintiffs’ Legal Comm., 531 U.S.
341 (2001) ..................................................................6
Carroll Airport Comm’n v. Danner, 927 N.W.2d
635 (Iowa 2019) .......................................................15
City of Burbank v. Lockheed Air Terminal, 411
U.S. 624 (1973) .................................................... 7, 12
Crosby v. Nat’l Foreign Trade Council, 530 U.S.
363 (2000) ................................................................18
Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta,
458 U.S. 141 (1982) .................................................18
v
TABLE OF AUTHORITIES – Continued
Page
Freightliner Corp. v. Myrick, 514 U.S. 280 (1995) .......18
French v. Pan Am Exp., Inc., 869 F.2d 1 (1st Cir.
1989) ..........................................................................8
Geier v. Am. Honda Motor Co., 529 U.S. 861
(2000) ................................................................. 19, 20
Greene v. B.F. Goodrich Avionics Sys., Inc., 409
F.3d 784 (6th Cir. 2005) .............................................8
Hillsborough Cnty. v. Automated Med. Labs.,
Inc., 471 U.S. 707 (1985)............................................6
McCauley v. United States, 470 F.2d 137 (9th Cir.
1972) ........................................................................14
Michigan Chrome & Chem. Co. v. City of Detroit,
Nos. 92-1694, 93-1916, 1993 WL 432834 (6th
Cir. 1993) .................................................................14
Montalvo v. Spirit Airlines, 508 F.3d 464 (9th
Cir. 2007) ...................................................................8
Mutual Pharm. Co. v. Bartlett, 470 U.S. 472
(2013) ................................................................. 17, 19
Perez v. Campbell, 402 U.S. 637 (1971) ......................18
Town of Barnstable v. Fed. Aviation Admin., 659
F.3d 28 (D.C. Cir. 2011) ...........................................14
Tweed-New Haven Airport Auth. v. Tong, 930
F.3d 65 (2d Cir. 2019) ................................................8
US Airways, Inc. v. O’Donnell, 627 F.3d 1318
(10th Cir. 2010)..........................................................8
White Indus., Inc. v. Fed. Aviation Admin., 692
F.2d 532 (8th Cir. 1982) ...........................................13
vi
TABLE OF AUTHORITIES – Continued
Page
CONSTITUTIONAL PROVISIONS
U.S. Const. art. VI, cl. 2 .................................................6
STATUTES
5 U.S.C. § 555(b) ..........................................................15
49 U.S.C. § 40103(a)(1) .................................................8
49 U.S.C. § 44718 ..........................................................9
49 U.S.C. § 44718(a) ......................................................9
49 U.S.C. § 44718(b)(1) .................................................9
49 U.S.C. § 44718(b)(2) .................................................9
Me. Stat. tit. 4, § 57 .......................................................1
RULES
Me. R. App. P. 12(c) .......................................................5
REGULATIONS
14 C.F.R. § 77.1 et seq. ..................................................9
14 C.F.R. § 77.9(a) .........................................................9
14 C.F.R. § 77.25(a) .......................................................9
14 C.F.R. § 77.25(b) .......................................................9
14 C.F.R. § 77.25(c) .....................................................10
14 C.F.R. § 77.31(a) .......................................................9
14 C.F.R. § 77.31(d)(1).................................................10
14 C.F.R. § 77.31(d)(4).................................................10
vii
TABLE OF AUTHORITIES – Continued
Page
LEGISLATIVE DOCUMENTS
H.R. Rep. No. 2360, 85th Cong., 2d Sess. (1958),
reprinted in 1958 U.S.C.C.A.N. 3741 ........................8
S. Rep. No. 1811, 85th Cong., 2d Sess. (1958) ..............8
OTHER AUTHORITIES
FAA Advisory Circular 70/7460-1L Change 1,
Obstruction Marking and Lighting (“FAA
Safety Lighting Standards”), available at
https://www.faa.gov/documentLibrary/media/
Advisory_Circular/AC_70_7460-1L_with_chg_
1.pdf ................................................................. 3, 4, 10
Me. R. App. P. 12 advisory notes, August 2004 ............5
1
INTRODUCTION
The Maine Supreme Judicial Court, sitting as the
Law Court,1 concluded that the Federal Aviation Act
(“Act”) preempts Petitioners’ state law nuisance action premised on implementation of airspace safety
measures that the Federal Aviation Administration
(“FAA”) included as an express condition for issuing a
“determination of no hazard to air navigation” relating
to construction of two utility towers. The Law Court’s
decision, which is non-precedential, correctly preserves
the FAA’s exclusive authority over airspace safety.
Congress, in adopting the Act, established a detailed regulatory scheme that occupies the field of airspace safety. Under the Act and its implementing
regulations, anyone proposing to construct a tower
over 200 feet tall must provide notice to the FAA and
the FAA must conduct an aeronautical study to determine whether the structure will create a hazard to air
navigation. Pursuant to this regulatory scheme, the
FAA may make any no hazard determination conditional on the use of safety measures, which, for structures over 200 feet high, includes lighting.
Petitioners seek to hold Central Maine Power
Company (“CMP”) liable under state common law for
implementing safety measures that the FAA stipulated as a condition for the no hazard determinations it issued for CMP’s utility towers. Their suit, if
1
When acting in its appellate capacity, the Maine Supreme
Judicial Court is referred to as the “Law Court.” Me. Stat. tit. 4,
§ 57.
2
successful, would compel CMP to remove the safety
lighting it installed on the towers pursuant to the
FAA’s condition.
Thus, rather than disrupting the relationship between federal and state law, the Law Court’s decision
properly preserves the supremacy of federal law governing airspace safety. Numerous federal courts have
held that the Act occupies the field of airspace safety,
and the Law Court’s application of field preemption to
the FAA’s no hazard determinations is consistent with
this precedent. Further, the Law Court’s decision appropriately recognizes that, if litigants could avail
themselves of state common law to impose liability for
compliance with the FAA’s conditional no hazard determinations, state law would stand as an obstacle to
the Act’s purposes. The Law Court properly found that
the Act preempted Petitioners’ nuisance action, foreclosing the possibility that a private party could be
held liable under state law for complying with FAA
safety measures.
Petitioners have failed to identify any serious
question deserving this Court’s review.
---------------------------------♦---------------------------------
STATEMENT OF THE CASE
In 2019, CMP replaced two utility towers that support power lines across the Kennebec River, in Maine,
as the river flows into Merrymeeting Bay. The new towers, approximately 240-feet tall, are outfitted with
safety lights that flash to alert aircraft to the presence
3
of the towers. In response to concerns from residents
about having continuously flashing lights, CMP
equipped the towers with an Active Aircraft Detection
Lighting System (the “Radar System”) that triggers
the lighting only when aircraft are nearby, thus limiting the flashing. (App. 4).
CMP installed the radar-activated lighting system
following review and approval by the FAA. On March
12, 2018, after CMP provided public notice of intent to
construct the towers as required by the FAA, the FAA
conducted a review and issued a “determination of no
hazard to air navigation” with respect to the towers.
The no hazard determination explained that the FAA
had conducted an aeronautical study, which “revealed
that the structure does not exceed obstruction standards and would not be a hazard to air navigation provided the following condition(s) . . . is (are) met: As a
condition to this Determination, the structure is to be
marked/lighted in accordance with FAA Advisory circular 70/7460-1 L Change 1, Obstruction Marking
and Lighting, a med-dual system – Chapters
4,8(MDual),&12.”2 (App. 5, 24 (emphasis added)). Subsequently, CMP submitted a revised proposal incorporating the Radar System, which would allow for
reduced frequency of flashing lights. In response, on
March 25, 2020, the FAA issued a new determination
of no hazard, again conditioned on the marking of the
2
The FAA Advisory Circular is referred to herein as the
“FAA Safety Lighting Standards,” and is available at
https://www.faa.gov/documentLibrary/media/Advisory_Circular/
AC_70_7460-1L_with_chg_1.pdf.
4
towers and the utilization of a lighting system in accordance with FAA Safety Lighting Standards. (App. 45).
Petitioners, three individuals who reside in the vicinity of the towers plus a non-profit conservation
group, filed a complaint in Maine Superior Court asserting state law nuisance claims. As is relevant here,
Petitioners sought to hold CMP liable for implementing the lighting mechanism specified as a condition of
the FAA’s no hazard determination, alleging that the
flashing lights on the towers constitute an actionable
nuisance because they have a negative effect on enjoyment of their property and the economic value of properties around Merrymeeting Bay.
The Superior Court granted CMP’s motion to dismiss the nuisance claim. (App. 9-17). The court reasoned that the claim was barred by both field
preemption and conflict preemption. As to field
preemption, the Superior Court concluded, first, that
the Act preempts the field of airspace safety and, second, that a nuisance claim premised on the use of lighting that the FAA stated was a condition for the
issuance of its no hazard determination would necessarily invade that field by negating the agency’s safety
recommendations. (App. 13). As to conflict preemption,
the Superior Court concluded that “punish[ing] a party
for following the FAA’s safety standards and explicit
recommendations surely creates an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress.” (App. 14; see App. 17).
5
On appeal, the Law Court affirmed the Superior
Court’s ruling in a non-precedential memorandum of
decision. (App. 1-2). The Law Court concluded that “the
court did not err in concluding that [Petitioners’] state
law claims are preempted because they are based on
CMP’s compliance with FAA standards that occupy the
field of aviation safety.” (Id.).
---------------------------------♦---------------------------------
REASONS FOR DENYING THE PETITION
I.
The Law Court’s decision has no precedential weight.
This Court should deny the petition because the
Law Court issued its decision via a memorandum of
decision that carries no precedential weight. The
Maine Rules of Appellate Procedure provide that
“[d]ecisions of the Law Court may be reported by several methods, including a signed opinion, a per curiam
opinion, or a memorandum of decision.” Me. R. App. P.
12(c). The Rules specifically provide that “[a] memorandum of decision decides an appeal but does not establish precedent and will not be published as an
opinion of the Court in the Maine Reporter.” Id. The
Advisory Notes explain that, because a memorandum
of decision “has no precedential value,” it “should not
be cited as precedent in legal briefs or memoranda or
in judicial opinions in unrelated proceedings.” Me. R.
App. P. 12 advisory notes, August 2004. In this case, the
Law Court chose to issue its decision via a memorandum of decision. (App. 1). Petitioners’ argument that
6
the Law Court’s “precedent creates great uncertainty
if allowed to stand” (Pet. at 12) thus fails at the outset:
it is not even precedent.
II.
Petitioners have identified no significant
question regarding the merits of the Law
Court’s holding that field preemption bars
Petitioners’ state law nuisance claim.
Even if the Law Court’s decision had precedential
value, it creates no uncertainty because it correctly recognizes the supremacy of federal law. The Supremacy
Clause provides that federal law “shall be the supreme
Law of the land; and the Judges in every state shall be
bound thereby, any Thing in the constitution or Laws
of any State to the Contrary notwithstanding.” U.S.
Const. art. VI, cl. 2. Congress therefore “has the power
to preempt state law.” Arizona v. United States, 567
U.S. 387, 399 (2012). Preemption applies equally to all
forms of state law, including state tort law. Buckman v.
Plaintiffs’ Legal Comm., 531 U.S. 341, 351 (2001). The
Court recognizes three categories of preemption: (1) express preemption; (2) field preemption; and (3) conflict
preemption. Hillsborough Cnty. v. Automated Med.
Labs., Inc., 471 U.S. 707, 713 (1985).
The Law Court’s conclusion that field preemption
bars Petitioners’ state law nuisance claim is consistent
with federal precedent and the structure of the Act.3
3
Petitioners erroneously suggest that the Law Court’s decision was based solely on field preemption, and not conflict
preemption. Petition, at 8 n.5. As discussed below, the court in
7
Numerous courts have recognized that the Act
preempts the field of airspace safety given Congress’
intent to vest the FAA with exclusive authority over
airspace safety, and the Law Court’s decision properly
applies this straightforward principle. The Law
Court’s decision did not damage the Act or upset the
balance established by the Constitution’s federalist
structure; to the contrary, it ensured that aviation
safety standards authorized by Congress are not undermined by state common law.
A. The Law Court’s decision is consistent
with uniform federal precedent recognizing that the Act occupies the field of
airspace safety.
Under the field preemption doctrine, “States are
precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance.”
Arizona, 567 U.S. at 399. Field preemption applies
when federal regulation is “so pervasive that Congress
left no room for the States to supplement it or where
there is a federal interest so dominant that the federal
system will be assumed to preclude enforcement of
state laws on the same subject.” Id. (cleaned up).
Courts have consistently recognized that the Act
preempts the field of airspace safety. See City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 634
fact affirmed the Superior Court’s order on both grounds. See infra, Part III.
8
(1973); Tweed-New Haven Airport Auth. v. Tong, 930
F.3d 65, 74-75 (2d Cir. 2019); US Airways, Inc. v. O’Donnell, 627 F.3d 1318, 1327 (10th Cir. 2010); Montalvo v.
Spirit Airlines, 508 F.3d 464, 470-74 (9th Cir. 2007);
Greene v. B.F. Goodrich Avionics Sys., Inc., 409 F.3d
784, 795 (6th Cir. 2005); Abdullah v. Am. Airlines, Inc.,
181 F.3d 363, 371 (3d Cir. 1999); French v. Pan Am Exp.,
Inc., 869 F.2d 1, 3-4 (1st Cir. 1989); Bieneman v. City of
Chicago, 864 F.2d 463, 471-73 (7th Cir. 1988); Air Line
Pilots Ass’n Int’l v. Quesada, 276 F.2d 892, 894 (2d Cir.
1960). The Law Court is simply the most recent to apply this uncontroversial principle. (App. 1-2 (citing
Bieneman, 864 F.2d at 471-73 (observing that “federal
law preempts the regulation of safety in air travel” and
that common law liability cannot be premised on compliance with federal safety standards))). As the Law
Court rightly concluded, the Act creates an extensive
regulatory framework governing airspace safety, including safety measures for tall structures that may
obstruct the use of navigable airspace, precluding enforcement of state laws in this field.
The Act provides that “[t]he United States Government has exclusive sovereignty of airspace of the
United States.” 49 U.S.C. § 40103(a)(1). In adopting the
Act, Congress declared its intent to place “full responsibility and authority for . . . promulgation and enforcement of safety regulations” for aviation in the
FAA. H.R. Rep. No. 2360, 85th Cong., 2d Sess.1 (1958),
reprinted in 1958 U.S.C.C.A.N. 3741; see S. Rep. No.
1811, 85th Cong., 2d Sess. 5 (1958) (noting that aviation is “subject to little or no regulation by States or
9
local authorities”). As pertinent here, the Act authorizes the Secretary of Transportation to review structures affecting air commerce. 49 U.S.C. § 44718. Under
the Act, persons must provide public notice of proposed
construction of a structure if notice “will promote (1)
safety in air commerce; [or] (2) the efficient use and
preservation of the navigable airspace.” Id. § 44718(a).
Subsequently, if the Secretary determines that construction “may result in an obstruction of the navigable airspace,” then the Secretary must “conduct an
aeronautical study to decide the extent of any adverse
impact on the safe and efficient use of the airspace. . . .”
Id. § 44718(b)(1). The Secretary must then issue a report disclosing any adverse impacts on the “safe and
efficient use of the navigable airspace” caused by the
structure. Id. § 44718(b)(2).
The FAA has promulgated extensive regulations
implementing these requirements. See 14 C.F.R. § 77.1
et seq. Under these regulations, any construction that
will extend more than 200 feet above ground level requires notice to the FAA and an aeronautical study. Id.
§§ 77.9(a), 77.25(a). “The purpose of an aeronautical
study is to determine whether the aeronautical effects
of the specific proposal and, where appropriate, the cumulative impact resulting from the proposed construction or alteration when combined with the effects of
other existing or proposed structures, would constitute
a hazard to air navigation.” Id. § 77.25(b). Following
the study, the FAA must issue a determination
whether the structure would present a hazard to air
navigation. Id. § 77.31(a). The FAA may make any no
10
hazard determination conditional, and may include
“[m]arking and lighting recommendations, as appropriate.” Id. § 77.31(d)(1), (4).
The FAA’s regulatory standards “are supplemented by other manuals and directives used in determining the effect on the navigable airspace of a
proposed construction or alteration,” id. § 77.25(c), including the FAA Safety Lighting Standards, which set
“forth standards for marking and lighting obstructions
that have been deemed to be a hazard to air navigation,” FAA Safety Lighting Standards at i. The FAA
Safety Lighting Standards set forth “minimum standards in the interest of safety, economy, and related
concerns.” Id. § 2.3. They provide that structures exceeding 200 feet in height “should be marked and/or
lighted,” id., unless an aeronautical study concludes
otherwise, stating that “to provide an adequate level
of safety, obstruction lighting systems should be installed, operated, and maintained in accordance with
the recommended standards” set forth therein, id.
§ 2.3.
In light of the consistent case law recognizing that
the Act occupies the field of airspace safety as well as
the legal framework created by the Act and its implementing regulations governing structures affecting
the navigable airspace (including the use of safety
lighting), the Law Court’s holding that field preemption bars Petitioners’ nuisance claim based on the use
of safety lighting on CMP’s towers is unexceptional. As
the Seventh Circuit has observed, “a state may not use
common law procedures to question federal decisions
11
or extract money from those who abide by them.”
Bieneman, 864 F.2d at 473.
Here, the FAA, which has exclusive regulatory authority over the airspace of the United States pursuant
to the Act, has issued comprehensive regulations requiring public notice regarding the construction of
towers that exceed 200 feet above ground level; CMP
duly provide public notice relating to the construction
of its towers; and the FAA then conducted an aeronautical study relating to these towers, issuing a no hazard determination that was expressly conditioned on
CMP’s implementation of safety lighting. (App. 23-27).
Petitioners’ nuisance suit would intrude upon this
comprehensive regulatory approval framework by creating state tort liability based on the airspace safety
measures that the FAA deemed necessary for the issuance of a no hazard determination.
At its core, Petitioners’ position is that private litigants should be allowed, by means of a state law tort
action, to force CMP to disregard the safety recommendations issued by the FAA following the aeronautical
study conducted pursuant to the Act. There is no question that the FAA’s review of CMP’s proposed towers
was statutorily mandated and resulted in the FAA issuing a determination that CMP should use lights to
prevent aviation accidents. Nevertheless, Petitioners
want state courts to hold CMP liable for installing
those lights. The preemption issue is therefore obvious:
application of state tort law in this context would directly impinge upon the FAA’s oversight of airspace
safety under the Act. The Law Court therefore
12
correctly affirmed the Superior Court’s decision to
grant CMP’s motion to dismiss on these grounds. (App.
1-2, 10-13).
B. The Law Court’s decision does not harm
the structure of the Act.
Notwithstanding the consistent case law recognizing that the Act occupies the field of airspace safety
and vests the FAA with exclusive authority in that
area, Petitioners argue that the Law Court’s decision
damaged the structure of the Act. Petitioners contend
that the Act created a scheme of cooperative federalism
in the field of aviation safety, noting that a no hazard
determination has “no enforceable legal effect” and
states that it “does not relieve the sponsor of compliance responsibilities relating to any law, ordinance, or
regulation of any Federal, State, or local government
body.” (Pet. at 1). Not only is Petitioners’ argument contradicted by the comprehensive nature of the Act’s regulatory framework and Congress’ stated intent, as
discussed above, but Petitioners also mistake the significance of the FAA’s determinations.
Following this Court’s holding that state law is
preempted to the extent it would intrude upon federal
authority over airspace safety, see City of Burbank, 411
U.S. at 633-34, federal courts have found state law
preempted in the context of the FAA’s no hazard determinations. See Big Stone Broad., Inc. v. Lindbloom,
161 F. Supp. 2d 1009, 1015-1020 (D. S.D. 2001). As
the Big Stone court recognized, the Act’s broad
13
legislative scheme, its legislative history, and the detailed regulations adopted pursuant to that scheme all
lead to the conclusion that the Act preempts the field
of airspace safety and that state law cannot supplant
no hazard determinations. Id.
Given the broad preemptive effect of the Act and
its implementing regulations, it is irrelevant that no
hazard determinations have “no enforceable legal effect” in that the FAA does not have the power to enforce
such determinations by prohibiting construction that
it deems dangerous to air navigation. See Aircraft
Owners and Pilots Ass’n v. Fed. Aviation Admin., 600
F.2d 965, 966-67 (D.C. Cir. 1979).4 Although the FAA
relies upon “moral suasion” to induce compliance with
no hazard determinations, those determinations still
have “substantial practical impact” and, as a practical
matter, are binding in force and effect. Id. at 967; see
White Indus., Inc. v. Fed. Aviation Admin., 692 F.2d 532,
533 n.1 (8th Cir. 1982); Air Line Pilots Ass’n Int’l, 446
F.2d at 241. The issuance of no hazard determinations
affects whether lenders will lend money, insurers will
provide insurance, local authorities will issue permits,
and so forth. See BFI Waste Sys. of N. Am., Inc. v. Fed.
Aviation Admin., 293 F.3d 527, 532 (D.C. Cir. 2002).
Consider one example: if CMP erected the towers without the safety requirements specified by the FAA and
4
The “no enforceable effect” language originated with the
FAA’s argument, first made fifty years ago (and rejected by every
court to have considered it) that its hazard determinations are not
judicially reviewable. See Air Line Pilots Ass’n Int’l v. Dep’t of
Transp., 446 F.2d 236, 240 (5th Cir. 1971).
14
a plane struck the towers, CMP would face liability for
failing to follow the FAA’s recommendations. See, e.g.,
McCauley v. United States, 470 F.2d 137, 138 (9th Cir.
1972). Accordingly, regardless of the FAA’s power to enforce no hazard determinations, such determinations
must preempt state common law tort claims that
would impose liability for following the FAA’s airspace
safety recommendations.
Petitioners cannot point to any federal precedent
to the contrary; instead, they rely on cases that do not
address preemption at all. In Town of Barnstable v.
Federal Aviation Administration, the D.C. Circuit considered whether the FAA’s lack of authority to enforce
no hazard determinations meant that petitioners
lacked standing to challenge the determinations; ultimately, the court found that the petitioners had standing because the wind project as a practical matter
could not be built if it was determined to be a hazard
by the FAA. 659 F.3d 28, 31-34 (D.C. Cir. 2011). In
Michigan Chrome & Chemical Co. v. City of Detroit, the
Sixth Circuit concluded that plaintiffs’ taking claim
was not ripe because the FAA’s no hazard determination was not the equivalent of a final agency action.
Nos. 92-1694, 93-1916, 1993 WL 432834, *6 (6th Cir.
1993). These cases are simply inapposite. It is one
thing to observe that the FAA’s lack of enforcement
power might affect a party’s standing or the ripeness
of a takings claim. It is quite another to say that state
law can be used to hold parties liable in tort for utilizing the safety measures set forth as a condition of a no
hazard determination.
15
Moreover, Petitioners overstate the effect of according preemptive effect to the FAA’s no hazard determination in this case. By preempting state law
claims that would negate the FAA’s safety recommendations, the Law Court did not bar the State of Maine
or municipalities from imposing requirements that
would not adversely affect airspace safety. Both the
State and municipalities therefore remain free to withhold permits for projects that would violate other state
or local laws. It is in this sense that the no hazard determination leaves CMP subject to “any law, ordinance,
or regulation of any . . . State or local body.” (App. 26).
Further, Petitioners’ claim that the Law Court’s
decision makes it “impossible for any governmental
entity to implement certain aeronautical recommendations in Maine” is simply wrong. (Pet. at 9). This case
did not involve state or local laws requiring conformity
with federal law or imposing stricter standards than
imposed by federal law; instead, this case involved an
attempt to impose, via state law, liability for compliance with federal safety standards. Cf. Carroll Airport
Comm’n v. Danner, 927 N.W.2d 635, 653 (Iowa 2019)
(concluding that the Act does not preempt state laws
imposing heightened safety standards).
Moreover, the Law Court’s decision does not hinder collaborative dialogue between federal and local
governments. The State and municipalities, as well as
other interested parties, may participate in the FAA’s
review process to suggest alternative safety measures
that would address local concerns. 5 U.S.C. § 555(b).
The Law Court’s decision simply means that the
16
private litigants in this case cannot leverage state law
to override FAA standards.
Petitioners have identified no sound basis to conclude that the Law Court’s decision undermines the
structure of the Act. To the contrary, the Law Court’s
decision properly affords the Act its full force and effect. The Act precludes litigants from using state law
to displace no hazard determinations issued by the
FAA pursuant to its exclusive authority over airspace
safety.
C. The Law Court’s decision does not distort federal-state relations.
Petitioners overstate the effect of the Law Court’s
decision by suggesting that it broadly displaces state
law in a variety of contexts. Contrary to Petitioners’
claim, the Law Court did not conclude that guidance
issued by any federal agency “triggers federal preemption and displaces a state’s right to manage its own territory.” (Pet. at 11). Because of the Act’s broad assertion
of federal authority over airspace safety, the Law
Court’s holding that the FAA’s no hazard determinations preempt state law does not mean that federal
agency recommendations in other contexts have similar preemptive effect. The Law Court’s decision does
not support the conclusion that guidance from the Centers for Disease Control, National Highway Traffic
Safety Administration, or National Oceanic and Atmospheric Administration preempts state law. Unlike
in the context of airspace safety, Congress has never
17
asserted exclusive federal authority over food safety,
traffic enforcement, or recreational fishing. The Law
Court’s decision thus has no bearing on the preemptive
effect of federal recommendations regarding these disparate issues. Following the Law Court’s decision, the
State of Maine retains the authority to manage its own
territory.
III. Because the Law Court’s decision can be
affirmed based on conflict preemption,
this case does not provide an appropriate
vehicle to address Petitioners’ field
preemption arguments.
Even if Petitioners had presented a substantial
question regarding the Law Court’s holding that the
Act preempts state law in the field of airspace safety,
this case is not a proper vehicle to decide that question.
Petitioners make no argument regarding conflict
preemption, which provided separate and independent
grounds for the Law Court’s decision. Not only did the
Law Court hold that the Act “occup[ies] the field of aviation safety,” but the Law Court also held that preemption applies “because [Petitioners’ claims] are based on
CMP’s compliance with FAA standards.” (App. 1-2). For
support, the Law Court cited Mutual Pharmaceutical
Co. v. Bartlett, 470 U.S. 472 (2013), a conflict preemption case. (App. 2). The Law Court’s decision could
therefore be affirmed on the basis of conflict preemption, without addressing Petitioners’ field preemption
arguments, because a state law nuisance action would
directly conflict with the Act.
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Conflict preemption applies “where state law
stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”
Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995);
see Arizona, 567 U.S. at 399-400. In determining
whether a state statute hinders the achievement of
federal policy, courts must first ascertain Congress’ objectives and then decide whether a conflict exists.
Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363,
373 (2000); Perez v. Campbell, 402 U.S. 637, 644 (1971).
In this case, regardless of the scope of field
preemption under the Act, allowing CMP to be held liable under state law for complying with an FAA safety
standard would plainly stand as an obstacle to the federal policy of promoting airspace safety. See Fidelity
Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141,
156 (1982) (finding preemption where state law limited
the availability of an option that the federal agency
considered essential to ensure its objectives). As described above, the FAA’s mandatory review process led
to a determination that CMP’s towers would not create
a safety hazard on the condition that CMP installed
safety lighting on the towers. Petitioners’ use of state
common law to impose liability on CMP for installation
of that lighting would directly interfere with Congress’
intent to promote air safety because, should the nuisance claim succeed, CMP would be compelled to remove the safety measures that the FAA recommended
pursuant to the Act’s regulatory scheme. As the Maine
Superior Court recognized below, “[t]o punish a party
for following the FAA’s safety standards and explicit
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recommendation surely creates an obstacle to the full
purposes and objectives of Congress.” (App. 14).
The Law Court correctly affirmed the Superior
Court on this point, noting that Petitioners’ state law
claim would impose liability for “compliance with FAA
standards” and citing Bartlett. (App. 1-2). In that case,
state law required a manufacturer to modify its pharmaceutical warnings while federal law forbade the
manufacturer from taking that remedial action. 470
U.S. at 486. This Court held that conflict preemption
applies when “federal law forbids an action that state
law requires,” id., and further held that the conflict
was not ameliorated by the fact that the manufacturer
could have chosen to stop selling its product, id. at
488-89. The same principles apply here because Petitioners’ state law claim would prohibit safety
measures that, under federal law, are conditions for the
issuance of a no hazard determination.
The Law Court’s decision is further supported by
Geier v. American Honda Motor Co., 529 U.S. 861
(2000). In Geier, the plaintiff, who had been injured in
a car accident, sought to hold the car manufacturer liable for failing to equip his vehicle with an airbag. Id.
at 865. The National Transportation Safety Board had
promulgated standards permitting, but not requiring,
airbags in vehicles manufactured prior to 1987. Id. at
875-81. The Court concluded that conflict preemption
precluded the “no airbag” action, because the purpose
of federal regulatory standards was to promote safety
by providing manufacturers with a range of choices
among different passive restraint devices, which would
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then bring about a mix of different devices that would
lower costs, encourage technological development, and
win consumer acceptance. Id. at 875, 878-79. As the
Court noted, if state law could impose liability for taking the very approach to vehicle safety that the federal
government was promoting, state law would directly
undermine those federal safety standards and thereby
stand as an obstacle the federal purpose. Id. at 871,
881. This is precisely what a state law nuisance action
would accomplish here.
As with field preemption, the fact that the FAA
does not claim enforcement authority for its no hazard
determination makes no difference. As the Maine Superior Court correctly reasoned, the “FAA relies on
other means to obtain compliance, and the federal statutory and regulatory scheme for managing air safety
maintains its preclusive effect.” (App. 16). State law
could be used to enforce the FAA’s safety recommendation: “[F]or instance, a party could seek a common law
remedy in state court for a defendant’s noncompliance
with FAA regulations and recommendations.” (App.
16-17 (emphasis in original)). On the other hand, “a
common law action brought in state court is subject to
conflict preemption when the injury described is a defendant’s adherence to FAA guidance. A holding to the
contrary would create an obstacle to the accomplishment and execution of the full purposes and objectives
of Congress.” (App. 17).
In short, a tort action sounding in state common
law that would impose liability for compliance with
FAA safety standards stands in direct conflict to the
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Act’s purpose. It is hard to conceive of something that
is more of an obstacle to the purpose of the federal
scheme – protecting airspace safety – than allowing a
state to require removal of the very safety measures
that result from the federal process. Given this separate and independent grounds for affirmance, this case
does not provide a useful vehicle for considering Petitioners’ field preemption arguments.
---------------------------------♦---------------------------------
CONCLUSION
For the foregoing reasons, this Court should deny
the petition for certiorari.
Respectfully submitted,
JOSHUA D. DUNLAP
Counsel of Record
PIERCE ATWOOD LLP
Merrill’s Wharf
254 Commercial Street
Portland, Maine 04101
jdunlap@pierceatwood.com
(207) 791-1100
Counsel for Respondent
Central Maine Power Company
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.