Federalism in the twenty-first century: preemption in the field of air.

• Author: Holland, Michael J.

WHILE THE FEDERAL COURTS and, to a lesser degree, the state courts have shown an increasing deference to federal law in determining whether federal rather than state law governs issues of aviation safety, the time is still afar when it can definitively be stated that state law has no place in the regulation of aviation safety. Courts have increasingly looked to federal law to determine liability and standard of care for such issues as in-flight air operations, pilot training and air space management, but they have been more reluctant to hold that federal law preempts state law in such areas as product manufacturing defects, failure to warn and on-ground aviation accidents.

This article provides an understanding the history of federal preemption of aviation safety starting with an examination of the relevant statutes, the Federal Aviation Act of 1958 ("FAA"), (1) the Airline Deregulation Act of 1978 ("ADA"), (2) and the General Revitalization Act of 1994 ("GARA"). (3) Next, this article evaluates the bases for preemption, which derive from the sovereignty clause of the United States Constitution, (4) which the Supreme Court has held to provide that any state law conflicting with a valid state law is "without effect" (5) and the two different types of preemption, express and implied, with implied preemption having been subdivided further into "field preemption" and "conflict preemption". (6) Finally, this article addresses the application of these concepts to the field of aviation safety, leading to the sometimes varying conclusions that the courts have reached on the extent of preemption and the areas of air safety to which it is applicable.

1. The History of Federal Regulation of Air Transportation

   1. The Federal Aviation Act (FAA)

      The FAA was enacted in 1958 following a series of fatal air crashes between military and civilian aircraft operating under separate sets of flight rules. Congress's intent was "to establish a new Federal Agency with powers adequate to enable it to provide for the safety and efficient use of the navigable airspace by both civil and military operations." (7) The purpose of the FAA was to centralize in a single authority, the FAA Administrator, "the power to frame rules for the sate and efficient use of the nation's airspace." (8) Whether that power extended to the right to override municipal restrictions on hours of takeoffs and landings at airports handling interstate flights was answered affirmatively by the Supreme Court in City of Burbank v. Lockheed Air Terminal, Inc., (9) when the Supreme Court struck down a local ordinance prohibiting jet aircraft from taking off between the normally somnolent hours of 11:00 p.m. and 7:00 a.m. Since the regulation affected airspace management, the Supreme Court found the Burbank ordinance to be preempted, reasoning "[if] we were to uphold the Burbank ordinance and a significant number of municipalities followed suit, it is obvious that fractionalized control of the timing of takeoffs and landings would severely limit the flexibility of [the] FAA in controlling air traffic flow." (10)

   2. The Airline Deregulation Act (ADA)

      The next Congressional foray into preemption was the 1978 passage of the ADA, which prohibited the States from enacting "any law, rule, regulation, standard, or other provision ... relating to rates, routes, or services of any air carrier having authority ... to provide air transportation." (11) The ADA, unlike the FAA, contained an express preemption provision, and the preemption battle, under the ADA has focused on what is a "rate, route or service". Each side has won skirmishes on this battle, and it is now been well established that personal injury claims are not preempted as relating to rates, routes or services, (12) while cases alleging unfair collection of taxes, deceptive advertising, or state laws creating passengers' bills of rights are preempted. (13)

   3. The General Aviation Revitalization Act (GARA)

      Finally GARA, passed in 1994 in response to claims that the general aircraft industry was on the verge of extinction due to product liability claims, limited claims for death, personal injury, or property damage related to general aviation aircraft and parts, with certain exceptions, to eighteen years after the manufacture of the aircraft. (14) One of GARA's primary purposes was to bar the use of state tort-based product liability claims against manufacturers of general aviation aircraft in service for more than eighteen years. To a large degree, GARA has been used successfully to defeat these product liability claims. (15)

2. Express and Implied Preemption under Federal Law

   The two types of preemption, express preemption and implied preemption (subdivided further into conflict and field preemption), must be factored into any analysis of whether a particular case is preempted by federal law.

   The ADA has an express preemption clause, (16) which explicitly preempts the states from enacting any law, standard, rule or regulation related to prices, routes and services of any carrier. The FAA has just the opposite, a savings clause which preserves existing remedies: "Nothing contained in this Act shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition to remedies." (17) After the FAA was renumbered and amended, the savings clause now provides that a remedy under the FAA is in addition to any other remedies provided by law. (18) GARA retained the FAA's original savings clause. (19)

   Even where there is no express preemption clause, a savings clause does not bar the ordinary working of implied preemption conflict principles so that, even where there is no express preemption, a claim may be barred under the doctrine of implied preemption. (20) Implied preemption consists of two types: conflict and field. Field preemption occurs in cases where the federal regulatory scheme is so pervasive as to make reasonable the inference that Congress left no room for the states to supplement the regulation of the activity. In short, Congress intended to fully occupy the relevant field. (21) A good example of field preemption is the City of Burbank case, (22) where the Court held that the federal government preempts the field of regulating flights in navigable air space, including permissible hours of landings and takeoffs at airports.

   Most recently, in Township of Tinicum v. City of Philadelphia, (23) plaintiff challenged the FAA's capacity enhancement plan which would extend runways at Philadelphia International Airport. Plaintiff relied on a Pennsylvania statute which required the consent of a municipality before any land could be purchased to expand the airport. Defendant City of Philadelphia argued that the provisions of this state law were impliedly preempted by the FAA on the grounds of "field preemption". The district court agreed, citing City of Burbank, and finding that the Pennsylvania statute went into a field preemptively occupied by federal authority.

   Implied preemption of the field and conflict type was described by the Supreme Court in Schneidewind v. ANR Pipeline Co., (24) as follows:

   ... Congress implicitly may indicate an intent to occupy a given field to the exclusion of state law. Such a purpose properly may be inferred where the pervasiveness of the federal regulation precludes supplementation by the States, where the federal interest in the field is sufficiently dominant, or where "the object sought to be obtained by the federal law and the character of obligations imposed by it ... reveal the same purpose." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Finally, even where Congress has not entirely displaced state regulation in a particular field, state law is pre-empted when it actually conflicts with federal law ... Most recent aviation cases, starting with the Third Circuit's seminal decision in Abdullah v. American Airlines, (25) have wrestled with the question of just how much, and to what extent, the field of aviation safety is preempted by federal law. While Abdullah has its judicial followers, a fair number of federal and state court holdings have disagreed with its breadth and have concluded that, in our federal system, there is still room for the application of state law in aviation tort cases.

3. Preemption in Pilot Standard Cases

   While Abdullah and its application of the Federal Standard-of-Care to tort actions is a contentious and controversial issue in the law, other implied preemption cases discussing the interplay between state and federal law regulating the air transportation industry have drawn less scrutiny. One of these cases, a pre-Abdullah decision, involved conflict preemption between federal and state law over a pilot conduct issue. In French v. Pan American Express, Inc., (26) a Pan American pilot was fired by the airline for refusing to submit to a drug test alter Pan American had received a tip from the local police that French may have been using marijuana while off duty. Under the FAA, the Secretary of Transportation was charged with promulgating rules and medical standards to which an airline pilot must adhere before he can be certified. Specifically, the regulations in question require that an aspiring pilot not have a medical history or a clinical diagnosis of drug dependency, or any other medical condition which a federal air surgeon determines makes the applicant unable to safely perform his duties. (27) French refused to take the drug test, arguing that a Rhode Island statute generally prohibited urine and blood testing of an employee as a condition of continued employment. Pan American, unimpressed by French's standing on his state law rights, fired him. French sought an order enjoining Pan American from requiring him to submit to a drug test in violation of the Rhode Island statute. Following the grant by the district court of judgment on the...