United States District Court, D. Connecticut
MEMORANDUM OF DECISION
A. Richardson United States Magistrate Judge.
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.
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.
filed this action on November 24, 2014 in federal court.
(Dkt. # 1). On June 30, 2016, the defendant filed a Motion to
Dismiss. (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. (Dkt.
# 45). 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).
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).
following facts, drawn from the parties' Stipulation of
facts in their Joint Trial Memorandum, are undisputed. (Dkt.
# 59, Stipulation of Facts).
Haven Airport Authority is a public instrumentality and
political subdivision of the state of Connecticut, pursuant
to Conn. Gen. Stat. 15-120i, et seq. (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).
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).
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. #
Airport is classified by the United States Department of
Transportation Federal Aviation Administration
(“FAA”) as a primary, commercial service airport
in that it provides regularly scheduled commercial passenger
air service. (Stip. # 14). 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).
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).
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).
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
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).
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).
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).
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. (Stip. # 23).
The planning documents describe several alternatives for
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).
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.
(Stip. # 27). 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).
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. (Stip. # 24).
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).
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).
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. #
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).
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. (Stip. # 37). 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).
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 could be brought into compliance as
part of the proposed runway extension project. (Stip. # 39).
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).
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).
there is no enforcement action pending by the FAA against the
Authority due to the non-standard separation between 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).
Authority is not in compliance with FAA design standards due
to the non-standard taxiway geometry. (Stip. # 43). 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).
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 U.S. Airways
Express branded operations. (Stip. # 45). Mr. Reich has
provided marketing services for the Airport since December
2011. (Stip. # 46). 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).
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).
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. #
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)
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 Tweed-New 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.
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 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).
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).
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. (Stip. # 60). 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).
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
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)
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).
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.” (Stip. # 63). To date, the City
of New Haven has not taken steps to invalidate the MOA. The