## Evaluation ofthe CityofSantaMonica's Authority toAddress Environmental Impacts From SantaMonica Municipal Airport's Operations

-November 2006
Frank G. Wells Environmental Law Clinic, UCLA School ofLaw Supervising Faculty: Sean B. Hecht, Co-Director, Frank G. Wells Environmental Law Clinic Marcela S.Butel, Assisting Attorney, Frank G. Wells Environmental Law Clinic Student Researchers: Kristin Hood, UCLA School ofLaw Class of2007 Brooke Jimenez, UCLA School ofLaw Class of 2006 Additional assistance from Kevin Tredway, UCLA School ofLaw Class of 2007

I. Report background

Los Angeles City Council member BillRosendahl has requested that the UCLA School ofLaw's Frank G. Wells Environmental Law Clinic examine and report on the legal context for any attempt by the City of Santa Monica ("City") to regulate operations ofthe Santa Monica Airport to reduce airemissions from aircraft.! Council member Rosendahl, who represents adistrict that includes residents who are affected by the operations of Santa Monica Airport, has made clearhis desire to use whatever tools are available to ensure that the airport's operations do not pose apublic health risk to local residents. Understanding the limits ofthe City of Santa Monica's powers willbe important to the Council member's work.

In particular, he has requested us to analyze the extent to which the City of Santa Monica possesses the ability to regulate airport emissions. In doing so, we have addressed, at Council member Rosendahl's request, some ofthe arguments made in 2000 by then-plaintiffs in alawsuit addressing the City's ability to institute such regulations.' Our analysis also incorporates information from officials ofthe City of Santa Monica, local residents, and scientific experts to provide factual context where necessary.
The authors assume that understanding what tools are available to the City to improve local residents' health is a shared goal.

1The Clinic and authors of tl1israper received no compensation fortheir work on ir.Kristin Hood and brooke Jimcnc/. conducted (lit; factual research and l1111Ch of the;legalresearch fur this project, and drafted much ofthis paper. Marcela Burel supervised that process. Scan IIcchr conducted additionallcgal research, drafted portions ofthe paper) and edited it. Kevin Tredway assisted with editing and revision ofthe paper. 2 Hall & lIcndcrson, l,LP. Plaintiffs Position Concerning the City ofSanta Mornca'« ()ngoingLcgal Right to Regulate Aircraft Operations at Santa Monica i\irporr 17) 20()f)) (ut,'rlilablt (J/ http://w\v\v.jetairpoJlution.com). \Xihi1c: our report docs not explicitly rtJer to the contentions inthis document, we address 1TIl1ny the same issues.


### II. Summary ofReport and Findings

Parts I-V are made up ofbackground matter to provide context for the report's legal analysis. In Part III below, webriefly examine the history ofthe Santa Monica Airport and the current conflict. In Part IV, we summarize the interests of the various parties involved. In Part V, we summarize the keyprovisions ofthe Santa Monica Airport Agreement. In Part VI, we undertake our legal analysis. First, we conclude that despite the general preemptive effect ofthe Federal Aviation Act on local regulation of aircraft operations, that statute does not extinguish the authority ofmunicipal airport proprietors to take reasonable, nondiscriminatory action to address local environmental impacts resulting from the operations ofthe airports it


### EXHIBIT 

# 3\owns or operates. Second, we note that the Santa Monica Airport Agreement does not limit the City of

Santa Monica's proprietary authority over the airport, except to the extent that express provisions ofthe Agreement place limits on that authority. Third, we analyze whether the Airport Noise and Capacity Act would prevent the City from unilaterally taking any new action to limit airport operations, and conclude that there is a significant argument that the Cityretains the power to take such action. Finally, we conclude that there is also a strong argument that the Clean AirAct does not preempt a municipal airport proprietor from taking action to address local airquality impacts in particular. We conclude by noting that the City's authority to take action to address airport health impacts isnot without limits. We do not try to delineate the permissible scope ofmunicipal action in this context. The Citywould undoubtedly take on legalriskby taking such action, as allthe issues are novel and the City cannot insulate itself from possible claims that itis overstepping its legalauthority. Nonetheless, we believe that the analysis below demonstrates that the Cityhas significant arguments supporting its authority to address the airport's impacts on public health.


### III. Factual Background

The Santa Monica Airport ("Airport"), established in 1919, has arich history and throughout its generations has left an enduring mark on the nature of aviation. In the earlypart ofthe 20th Century, Douglas Aircraft Company made the Airport headquarters forits vast operations of airline development and testing." Douglas quickly transformed not only the face of aviation, but also the City of Santa Monica. At one time, the company employed 44,000 workers in shifts covering twenty-four hours aday, seven days aweek.4

To accommodate nearby housing for its work-force, Douglas negotiated with the City of Santa Monica to zone the area surrounding the Airport residentially.' This changed aonce-sleepy beach resort town into a bustling and populated blue-collar city. It also setthe stage for tension between the airport and local residents through the second half ofthe

# zo- century and extending to the present day. During World War II, the Airport played a significant role in the building and testing ofdefense airplanes." During this time, the Federal Government took over ownership ofthe Airport and made dramatic improvements to the land, including building the runway that exists today.' After WWII, the Federal Government deeded the Airport land back to the City ofSanta Monica for indefinite ownership upon the condition that the property continued to be used as an airport.

3 hup:// w\V\v.santa-mouicn.org.' airporr,' l1_airport_h.aspx. 4 Id. 5 Id. r, Id. 7Id.
In the 1950's, after the City denied arequest by Douglas Aircraft to extend the runway to accommodate larger commercial airliners, the company moved its main operations to the Long Beach Airport." Bythe mid-1970s, the Douglas Aircraft Company was gone, and the Airport has been used ever since as ageneral aviation (non-commercial) "reliever" airport." Since the middle ofthe

## zo" century, general aviation has grown from anovelty reserved for only the rich to acommon form oftransportation. Consequently, use of the Airport byprivate aircraft, and specificallyjet aircraft, has grown dramatically since the 1960's. During the same time, residential development ofthe land surrounding the Airport has grown to capacity. Aerial photographs ofthe Airport today have been said to resemble an aircraft carrier in a sea ofhomes."As aresult, the Cityhas endured over forty years oflegalbattles dealing with issues associated with the

Airport. At the same time, the residents in the surrounding communities state that they have endured ever increasing levels ofnoise and airpollution and continue to fear for the safety oftheir homes and their families.12The tension between the modern operation ofthe Airport and the residential communities began with the advent ofjet-propelled aircraft in the 1960's. Although there were only five or sixtakeoffs and landings per day, residents aggrieved by noise from jet aircraft brought anuisance lawsuit against the Cityin the early 1960's that reached the California Supreme Court."

Hid 9 Id. 111Id. II http://wwwytairpollution.com. 12 ld.: sec also, Testirnonv from Council member Rosendahl's Sanra Monica ,\irport Town lIall i\-1cc:t"ing(November 20j)5). 13 Nestle v. Cit) ofSanLlYdonica, ()Ca1.3J 9211(1972), After aruling that the residents had standing to prosecute nuisance claims against the City, a settlement of the case resulted in, among other restrictions, acomprehensive ban onjet aircraft from using the Airport." For most ofthe 1970s,jet aircraft was not allowed to land at the Airport. In 1979, however, afederal lawsuit
was filedby various parties interested in landing jets atthe Airport."
The 9th Circuit affirmed the district court's upholding ofa series ofnoise regulations, but held that a comprehensive jet aircraft ban was anunconstitutional regulation. 16 After the repeal ofthe jetban, jet aircraft once again began using the Airport, and noise-related impacts resumed. In the early 1980's, the City of Santa Monica decided itwould be better off closing the airport and initiated actions to do SO.17 The City
was threatened with legalaction, however, bythe Federal Aviation Administration ("FAA") aswell asby other interested parties (mainly pilots and businesses that service aircraft around the Airport).

To settle the various disputes, the City of Santa Monica and the FAA entered into an agreement in 1984 ("the Agreement") which laid out various compromises responding to concerns oflocal and national aviation interests, aswell asthe residents ofneighborhoods affected by the noise from the airport." Important terms ofthe Agreement included apromise to keep the Airport open and operational as ageneral reliever airport untilJuly 1,2015;19a95 dbl SENEL noise limit for take-offs and landings;" anighttime curfew; 21and aformat within which future issues may be addressed within the scope ofthe

14 htl'J}:! /ww\\'.sant:l~m()nicl.urg/ airport.' l1_airport'_h.aspx, 15 Santa Monica Airport .vss'n, v, CII) ofSaur.i Monica, 659 F,2d ioo ((J'h Cir. 198J), IG

### u 17hnr:! /wwvv.sanra-rnonica.ory.' airport/ tl_aiq)()lt_h.aspx. 18 The Santa Monica Airport Agreement (I (84), "IhUp:! !www.santa-monica.org/airport/PDF··· •• 21IFilc.!1 9H+"·,,2IL\grcemenI.PD1'j. 19 Id. ,11 ". 20 Id. 011 16, 21M. ,11 22. Agreement.22The Agreement also reserved the City's proprietary powers to regulate airport operations. 23 Since the 1984 compromise, the Airport has continued to serve as a "general reliever" airport for the Los Angeles Basin, and jetuse atthe Airport has grown dramatically. Annual jet operations have risen from 1,176 operations in 1983 to 18,091 in 2004.24The rise injet aircraft use may be attributable to many factors. Technology in the last 20years has created lighter, faster, and quieter jets." Additionally, various federally-funded improvements have made itpossible for ever larger and faster types ofjets to land at the Airport despite noise and weight limitations which do serve to exclude certain types of jet aircraft?6For businesspeople and other private citizens with the means to do so, using the Santa MonicaAirport is aconvenient way to avoid the hassle of LAX. Furthermore, itis growing increasingly common for

businesses and individuals to participate in "fractional share" jet use, whereby many different parties own a "fraction" of one or apool ofjet aircraft, making itmuch more economically feasible to flyprivate aircraft into smaller airports like Santa Monica. 27
General reliever airports are closed to commercial airtraffic, so ifthe FAA considered fractional share jets a commercial form of travel, these jets would not be able to land at the Airport." Although much of the fractional jet use is related to commercial operations, the FAA considers this fractional jet

22

### u at 2'). 21 See, e.g.,it/. at § 14, 24 http://WWW.lctairpOUutio(1.com. 25 Interview with Hob 'lrirnborn •.\irport "'Tanager (February 22. 200(,). Sa ,,/,{), http:// ww',v. sant.i-rnon ica.org/ airporr/' n
..... airport .h,asrx; http:/ /wvcw.jcrairpoliution.corn. 26 Interview with Bob Trimborn .wpm note 25. Ja afro, http://www.santl···nH>nica.org/ailport/n,,._aiqx1rt._,h,aspx. 27 SeC', t'.,~.• http://ww\V.fracti()naljetowncr~hir.com/colltcnt/history.htmL 2K fd.

use anon-commercial form of air travel, making landings at the Santa Monica Airport permissible" The increase injet use in the past 20 years has increased not only noise, but also air emissions, exacerbating the Airport's potential impact on the surrounding community. According to Dr. John Froines.i'' Professor of Toxicology at the UCLA School of Public Health, ultrafine particles emitted byjet aircraft can cause heart disease, lung cancer, asthma, allergic airway disease, developmental defects in unborn children, and chronic I
. Idi 31 neuro oglca sease,
Dr. Froines also found that ultrafine particles are more hazardous than other particulate matter because ultrafine particles invade and disrupt mitochondria, which are the energy-producing organelles within a cell.32 Dr. Froines notes that terrestrial motor vehicle emissions also cause health hazards associated with ultrafine particles. Residents living near the airport runway are exposed to higher concentrations of these dangerous pollutants than those living farther away. 33In October 2005, the County of Los Angeles directed
a study consisting of a sampling of "airport black dust" in 5 areas surrounding the Santa Monica Airport." The purpose of the sampling was to identify the chemicals contained in the air around the

29 Santai\lonica Deputy City .vttorncy Maxtin Tachiki stated in an interview with the student authors that much of the jet usc at the ,-\irport is Fractional share jet
usc. Interview with Martin Tacluki (Fcbruarv 22.2(06), Jcc /I!\'(I, http://ww\v.jctairpollution.com

.

. ')0 Dr. l-roincs is also the director of the SOuthern California Particle Center and Supersite, which is funded by the U.S. 1":nvirot1mental.Protcction Agency and the Calif(lrnia,\ir RCS(lllrCe~ Board. He and his ream of researchers arc the national experts on the toxicity 

### orparticles which arc released through combustible: cnglnl;s, 31 Interview with Dr. lroincs, Professor of'['m"co]ogv,UCL\ (April 5, 2(00). :):2.John Froincs ct al., P(/r/joll~'1t Pol/ltlrmh' JIJdw('{' .\'/n:,u .ind :,Hi/odJOfidria/ Damt~~('l Environrncntal IIcalth 'Perspectives, 455, \'01. 111 (April 200:'); Jet afro, http://\\'\V\\',cdlsali\'c .com/cclb/ rnitochon.htrn

. .13 Those living in clo«: proximity to the 405 Freeway suffer similar hl.'ightcncd cxpo~urc to these toxic particles. hi ).j luf Particle ldcntification for Project: Santa Monica .virport Black Dust Sampling, County of Los Angeles. Material Science Division, 1 (Oct. 20(5). Airport.35 In all 5 areas, carbon black was detected." The report which details the results of this study indicates that "the carbon black concentration given in the tables is for carbon black that originates solely from incomplete burning of hydrocarbon compounds?" According to Dr. Froines' report, black dust is an indicator of ultrafine particles which are hazardous to people's 

### healthj" and the Santa Monica Airport sampling has found black dust in areas surrounding the Airport." Jet aircraft emissions are made up of 70% carbon dioxide (C02), 30% water vapor (H20), and less than 1% nitrogen oxides (NOx), less than 1% carbon monoxide (CO), less than 1% oxides of sulfur (SOx), less than 1% unburned or partially combusted hydrocarbons (VOCs), less than 1% particulates, and less than 1% other trace compounds.l"In addition, about 10% of aircraft emissions areproduced during airport ground level operations and during

landing and takeoff, except for hydrocarbons and CO, ofwhich 30% are produced during ground level operations, landings and takeoffs." Each ofthese compounds and other aircraft emissions are regulated by the CAA. 42Local residents believe the increase injet emissions islargely due to changes in flight takeoff procedures which were implemented in 1990. 43 Departure procedures instituted after alocaljet crash motivated achange in the flightpath from the Airport."

35 ld.

.

. ,(, t.l. at 2. 37 rd. at 3

.

.")HFroi.ncs. supn! note 32. ,')<)FullParticlc Identification forProicct: Santa Monica Airport Black Dust Sampling, County of Los i\ngdcs~t\Jatcrial Science Division, :2(Ocr. 20(5). 4U Aviation ,-~":nlissi(Jns: A Primer, Fcdcra.l .vviation .Ydministrarion Office of Environment and l':ncrgy, 1 (Jan. 20(5) ill http: // \\'\\'w. faa,gll\' /fcgulations._,_policics/ policy

.... g11idancc/ cnvir

...

policy/n1cdia/ )\J_~PRI\l[':R.pdf. 41 Id. at 2. 42 Sec 42 U.S.C § 7571. 43 Testimony from Council member Rosendahl's Santai\loniC:l Airport Town 11:11J I\lccting. ,wpm note 12; sec also; http://\V\\'w,jctaiJ11011utiut1.co111. 44 http://w\\'\\·.santa·m(lnica,or~:/ ai.rport! n airport h.aspx.
This change resulted in aconvergence between the flightpaths ofplanes taking off from the Santa Monica Airport and LAX. As aresult, the FAA now requires allIFR (instrument-controlled) aircraft to await permission from LAX before takeoff. According to local residents, jets idlewith their engines on for significant periods oftime while awaiting approval from LAX to take off.45

The 1984Agreement does not address jet aircraft emissions, and there has been no movement from the Cityin the recent years to pass ordinances which may help mitigate the impact ofjet emissions on the community. 46The various interests at stake are conflicting, the laws are complex, and there are political dimensions to the issue, making movement towards a solution to the changing impacts from jet emissions slow.


### IV. Stakeholder Interests
The Airport serves the interests ofseveralconstituents. Airport stakeholders include the Federal AviationAdministration, the CityofSantaMonica, the neighboring community, andAirport users.

a.The Federal AviationAdministration ("FAA")

The FAA regulates our nation's airports, and has aparamount interest in ensuring that airport operations
are safe and efficient. Under the Federal Aviation Act of 1958 (Aviation Act), exclusive authority was vested in the FAA for the regulation of allaspects ofairsafety, the management and control ofthe safe and efficient use ofthe

45 Iltt"p:/ /www.jetairpollutiou.corn. 4(}The City of Santa l\lonica contends, however, that the air pollution has gotten better since 21104. Idling rimes hnve decreased in the aggregate since clearance for] I'-H..iircr.ifr now needs only to go rhn>ugh L/\X. and not' through Southern California's centralized air traffic control center in San Diego. lntervicws wirh Bob Trimboru :lnt.:.!\larLin Tnchiki, 511/'11.1 notes :24, 29. The resident's claim, however that the pollution has steadily gotten worse OV(T the last 10 years. 'I'estimonv fr.uu Council rnc-rnhcr Rosendahl's Santa Monica Airport Town lIall i\;Iceling~ .fJfJ'l11.1 note 12. navigable airspace, and movement ofaircraft through that airspace. 47The FAA clears the takeoffs and landings of allaircraft entering the Airport, and any changes in takeoff, flight, or landing paths need FAA approval." Moreover, itbroadly regulates airport operations. The FAA can be expected to continue to assert broad authority to regulate airport access and to minimize the role oflocal governments in such regulation. Since the FAA's primary obligation isto ensure flight safety, ithas an interest in decreasing airtraffic congestion. Increasing the number of operational airports can help decrease air traffic congestion.

"The Airport serves an important role in the regional and national system of airtransportation and air ,i
commerce. It has avital and critical role in its function as ageneral aviation reliever for the primary airports in the area.,,49

The FAA has an interest in the continual operation of the Airport since ithelps to relieve air traffic from LAX, thus decreasing overall air traffic congestion in Los Angeles. The FAA also has an interest in regulating aircraft noise. Under Section 611 of the Aviation Act, the FAA was given substantial responsibility for the reduction of aircraft noise.i'' By entering into the Agreement, the FAA has acknowledged and agreed that the City retains certain powers over Santa Monica Airport operations."
The FAA has a specific interest in complying with the Agreement, and ensuring compliance by the City, to reduce the impacts of aircraft noise pollution. In addition to regulating noise, the FAA is among the agencies responsible for ensuring that aircraft emissions at airports do not lead to significant public health impacts. The agency has stated that "FAA, together with EPA and NASA, is committed

4749 U.S.c. 10(, 48 ld. 49 The Sarna \lonica ,\irpofl /\greclnCi1t. at §2(b)(i). 50 ld. "I §2 ('l)lii)

.. Ici' "!iI)49 U.S.c. 44715. 51 The Sarna Monica Airpor-t i\grcl'tnc11t.
to ensuring aviation emissions do not pose health concerns for our citizens or restrain aviation's mobility and economic benefits enjoyed by society.,,52The agency has taken steps to reduce emissions from airport ground operations by developing aprogram to address air quality improvements through alternative fuel ground support equipment. 53 The FAA has also expressed an interest in studying the effects ofjet air lluti 54 po ution,


### b.The Residents

Since the Airport is closely surrounded by residential neighborhoods, residents near the Airport are impacted by its operations. The primary interest of the neighboring community is to live in an area free from the negative impacts of the Airport, such as noise and airpollution. The residents surrounding the Airport expressed their interests at apublic meeting held on November 10, 2005. Many residents of Santa Monica and Los Angeles expressed concern about the increase injet operations at the Airport, and its impact on both noise and airpollution in their neighborhoods. Among the most common problems the residents cited was the presence of "sticky black soot" on their lawn furniture, cars, and fruit trees. 55 Another common problem cited by the residents was the smell ofjet fumes which motivated them to close their windows to avoid breathing the fumes" A concern stated by numerous residents was afear that inhaling jet fumes may lead to respiratory problems and disease. 57 According toJohn Froines, the presence of black

52 t.t. at 21. 5.1.\viation & Ivrnissiuns: .\ Primer, liederal

.. \viation .vdminist rnrion Office ofLnvironrncnr and l<nl'q.;y. 1J··14 (Ian. 20(5), J/ http://\\'ww.faa.go\'./r'c:g1llations

__ .. ptllicics/p()licY

__

.J~uidancc/cnvir

...

policy/medial,Yr-: PIU\JL;.R .pdf. 5·tld. at 18. 55 Testimony from Council member Rosendahl's Santa\Jonica Airport Town IIalli\tccting
J .lJIjml note 12- 5(, Id. 57Jd.

soot is an indication of ultrafine particulate pollutants, produced by incomplete fuel combustion, which, as stated previously, lead to numerous negative health effects. 58 Another concern expressed by residents wholivenear the Airport was the noise caused byjets flyingin and out ofthe Airport. 59Many residents reported

an increase in noise events related to the increase injet operations, stating that over the last 10-12 years, the number ofjets flyingabove their homes has increased significandy. 60
At certain times ofthe day, some residents reported jets flyover their homes every two minutes. 61 They report that the noise inhibits their ability to talk on the phone, watch television, and invite guests to their homes. 62Further, residents have testified that they can no longer relax in their backyards because ofthe noise from jets flying overhead.f



### c. Businesses and OtherJetUsers
The Santa Monica business community also has an interest in the way the Airport is operated. Many businesses in the Cityuse the Airport for travel. Severalbusinesses surrounding the Airport participate in the fractional share jetuse programs allowing them to affordably and conveniently flyin and out ofthe Airport rather than use LAX.64 Since Santa Monica and nearby communities arehome to numerous entertainment companies and other businesses, and LAX is surrounded by dense traffic, local businesses find the 58 Froines, supra note 32. Primary ultrafine particles are formed during gas-to-particle conversion or during incomplete fuel combustion. Due to their small size, high number concentration, and relatively large surface area per unit mass, ultrafme particles have unique characteristics, including increased adsorption of organic molecules and enhanced ability to penetrate cellular targets in the lung and systemic circulation. One ofthe major advances inparticulate matter research has been the recognition that the organic and metal particulate matter components can induce pro inflammatory effects in the lung due to their ability to cause oxidative stress. 

### Seeid.

59 Testimony fn>111 Council memberRosendahl's Santa Monica Airport Town Hall j\lccting,lIIpra note 12. GO 

### u (,1 It!. G21d (J.1It!. 64 [urcrvic-ws with Bub 'I'rimborn and Martin Tachiki, yu/'nl notes 25, 2(), J('t' alsa, hrtp: / !\v\vw. nctjct s.com," 1'hcl)'o20N ct] ctS(I';12(IPrugran1/ !1crjctsr,rogram_o\'(Tvic\v .asp. Santa Monica Airport more efficient for travel. 65 These businesses benefit from jet operations at the Airport.


### d. CityofSantaMonica

The City of Santa Monica has its own interests and obligations as the airport's proprietor and as the municipality inwhich the airport operates, including protecting the health and safety oflocal residents, responding to the needs ofboth residents and businesses in the area, and minimizing its own liability from operating the airport. The Agreement has been interpreted by the City as arestriction on its ability to decrease its operations, or to exclude certain types ofaircraft, without first getting permission from the FAA.66 City officials have explained that the Cityhas limited authority to regulate the Airport, and has no authority to regulate airemissions." Under the Agreement, the Cityretains the power to regulate noise in the manner specified in the Agreement. 68 In complying with the Agreement, the City has created a Noise Abatement Program, and the Cityhas the power to enforce the 95 dB maximum SENEL limit.69 In furtherance ofthis power, the Cityhas taken steps to ensure that aircraft meet this limit by issuing warnings and citations to pilots who failto remain under the 95 dB SENEL limit." The City also has an interest in serving the needs oflocal businesses. Cities areresponsible for providing benefits to its businesses in orderto raise revenue and create jobs for the city.Because the Airport attracts businesses to the City, Airport management (,5Jd. (,(, Jd (,7Jd. 68 The Santa \:lunica Airport Agrccnlcnt, § 20. (,') Jd. 70 lntcrviews with Bub 'I'rirnborn and i\1artin 'I'achiki, .fU/'fil notes ~5, 20,
should consider accommodating their interests at the Airport. Ifthe Citywere to regulate the Airport in a way that damages local businesses, the City could face lawsuits." The Cityhas aresponsibility to serve the needs ofits residents. In addition, the Cityis open to potential liabilityto its residents aswell as to Los Angeles residents for nuisances caused bythe Airport,72soithas alegalinterest in mitigating the local impacts from the Airport. Since the City ofSanta Monica ismade up of adiverse constituency, the needs of its residents willnot alwaysbe uniform, and willoften conflict. Commonly, cities respond to concerns that affect alarge number ofpeople, and have important consequences for the city.Nonetheless, many local residents believe that the City of Santa Monica has been slowin taking steps to work with the FAA to minimize the impacts ofairpollution on the Airport's neighbors.


## v. The SantaMonica AirportAgreement Twenty-two years ago, the FAA and the City of Santa Monica, with input from other stakeholders, were able to collaborate to develop ahistoric agreement to dealwith noise issues relating to the Airport's operations. The goal ofthe Agreement was to "expand and improve the communication, cooperation, and mutual understanding ofthe various perspectives ofthe parties, while recognizing and preserving their respective legalrights."73Much has changed since 1984.Jet operations, which are primarily responsible for both noise and airpollution impacts on the surrounding community, have increased from 1,176 in 1983 to 18,091 in 2004.74The residents complain that the 71.1'(1',e.g, Santa .\Ionica ,\irport.\ss'n. Y. Clly ofSanta Monica, 659 F.2J jilO ()'h Cir, 19K1). 72 Jee. I"'~"Nestle v. City 01'Santa \lonica, (, Cal..,d no (1972). 73 The Santa Mouica ;'\grccmcnt-, § 1(b). 74 Oltp:ih,,.\,,\ywt,.\l.rp.()JI\d.t!(!J1.s·nm. disruption on their lives has continually gotten worse in the last 20years. Furthermore, City officials have told us that 18,000 

### + take-offs and landings does not even come close to the capacity ofoperations which the Airport could maintain.f It istherefore reasonable to assume that ifanything, the adverse environmental impacts willincrease. In addition, under the Agreement, the Citymust ensure that "[t]he mix of aircraft to be accommodated atthe Airport shallbe consistent with the present mix of aircraft now based at the Airport and the mix forecast for the future as shown in Chapter III ofthe Airport Master Plan Study dated October, 1983.,,76

While jet operations have continued to increase, total airport operations have decreased
over time. The Airport currently has total operations of 130,000 per year, while in the 1990s ithad over 360,000.77The Agreement sets forth many specific provisions aimed atreducing aircraft noise impacts. It also recognizes that the Cityretains the power to regulate airport operations inways not inconsistent with the Agreement's specific provisions. For example, the Agreement states both that "the Cityhas the responsibility to manage the Airport, including the ability to take reasonable action designed to abate the impact ofnoise from aircraft operations on surrounding communities, in accordance with the principles of 

### SantaMonicaAirport Association v. City

### ifSantaMonicaand 

### British.AirwaysBoardv.PortAuthority 

### ifNew York,"78 and that "[t]he parties recognize and agree that itis appropriate for the City to exercise its proprietary authority to adopt75 Intervicws with Bob Trirnborn and Marrin Tachiki, .mpra notes 25. ~9.

76 The Sonia Monica Airport Agreement, § 13. 77ld 781:1. 11§2(,,)(iii).
ordinances and regulations applicable to lessees and users ofthe Airport consistent with the terms ofthe Agreement.,,79 The 1984Agreement contemplated the possibility that circumstances may change during the life of the Agreement (1984-2015)80and specifically laidout aplatform upon which future issues could be addressed and resolved. In section 3,the parties agreed that "all actions ofthe parties during the duration of this Agreement shallbe interpreted consistently with this Agreement." Section 7 ofthe Agreement states that the "terms [ofthe Agreement] shallnot be altered without the mutual consent ofthe parties, which shall not be unreasonably withheld" and goes on to read inpertinent part: "It isrecognized and agreed to that the parties willcooperate with each other and rationally analyze issues as they arise, and that any term of this Agreement may be modified by the terms of any future agreements between the parties, provided such future agreements expressly indicate an intention to modify this Agreement.,,81 If, asit appears, the regulations which were laid out in 1984 are no longer sufficient to combat the increasing noise pollution from the increase injet operations, the terms ofthe Agreement could be modified aslong as allparties agree on revised regulations. It appears this could take the form ofeither an entirely new agreement or an amendment to the existing regulations. The 1984Agreement does not explicitly address jet emissions impacts. Section 29 ofthe Agreement, however, states inrelevant part: "the parties agree to work

7')

### u at 14. HOS(;'cid. at~) 27.,:\n(1Iy~is of Future Alternatives, J'/alitl/!, in/Jilt1: "the parties recognize and acknowledge that there may be other feasible nois« abatcrncnr actions possible but not described in this .\grccrncnt., " 81 1:1.at § 7(h). cooperatively and consult with each other and other interested persons to resolve any differences between them which may arise in the future

... ,,82 Because jet operations at the airport have increased so dramatically in the two decades since the Agreement became operations, impacts from increasing jet aircraft emissions
on the community surrounding the Santa Monica Airport may wellbe such anew issue. Alternatively, ifthis isuntenable, the City, as set forth below, may consider regulating unilaterally to address the problem ofjet emissions' impacts on local residents.


### VI. LegalAnalysis

a.The scope ofthe City's municipal proprietor powers toregulate airport operations under the Federal AviationAct.
The Federal Aviation Act ("Aviation Act") broadly preempts most local regulation of airport operations. Nonetheless, the Citypossesses municipal proprietor powers that enable itto take reasonable, nondiscriminatory actions to regulate airport operations to reduce the City's exposure to liability for nuisance and enhance the surrounding community's "human environment." Here, Aviation Act preemption should not prevent the City from taking some steps to regulate aircraft emissions, consistent with the Agreement and other legalprinciples discussed below. (1)Municipal airport proprietors possess authority to act to address specific local environmental concerns relating to airport operations. Generally speaking, under the Supremacy Clause ofthe United States Constitution," federal lawwillpreempt state lawwhen Congress "expressly or impliedly indicates an intention to displace state law, orwhen state law

... conflicts with federal

>i2S,'(: ie! at ~~ 2(). Commitment UI Future Cooperation. 83 US Consr. art. VI. cl. 2.law.,,84In 1973, recognizing that uniformity in airport regulation was "essential to the maintenance of a

sound airtransportation system.l'" the Supreme Court held in 

### City

### ifBurbank v.LockheedAir Terminal, Inc. that federal regulation of airwayswas intended to preempt aircraft restrictions enacted by states and local governments pursuant to their police powers.i" The Court left the door open, however, to regulations imposed by municipal airport

### proprietors

- that is,local governments that themselves own or operate airports

- based on alegitimate interest in mitigating liability created by excessively noisy aircraft using their

. 87 airports,
Federal law thus broadly preempts state or local regulations that deal with aircrafts and airspace, subject to a complementary though limited role for local airport proprietors in addressing environmental concerns surrounding their airports.i" This is consistent with the recognition in other contexts that preemption applies only where a state or local government is acting as aregulator. Where a state or local government acts in a "proprietary" capacity, such aslandowner orpurchaser ofgoods, constitutional doctrines such as preemption and the "dormant commerce clause" that would otherwise bar state regulation do not prevent state or local action/"

Because the City of Santa Monica owns and manages the Airport, itisconsidered amunicipal airport proprietor. After the 

### City 

### ifBurbank case, Congress amended the Aviation Act to provide expressly that the proprietary powers and rights ofmunicipal

84 Alaska Airlines, Inc. v, City of Long Beach, 951 F.2d (J77, 982 (9'" Cir. 1991). 85 City of Burbank v. Lockheed Air Terminal, lnc., 411 U.s. (,24, 640 (1973). 8(, Lt. 87 fa. (Rchnquist dissenting) at ()51. 88 National Helicopter Co'1" of ,\mcrica v. City ofNe\\' York, B71'.3d 81, 88 (2"" Cir, 1998). W)Srt', f); .•Building and Consr. Trades Council of Metropolitan Dist. Y

.. :\ssociarcd Builders and Contractors of Massachusetts/Rhode Island, lnc., 507 US. 218. 227 (I()93); Big Country Foods. Inc. v, Board of Educ. of .'\nchorage School Dis!., 952 F.2d 117.\ 1177··78 (9'h Cir. ·19')2). airport owners are not preempted by federal law.90 Subsequent case lawhas delineated some ofthe circumstances under which this municipal proprietor power may be exercised. The "municipal proprietor" exception to Aviation Act preemption was originallyrecognized in the context of allowing municipalities to regulate aspects of airport operations to limit their own financial liability for constitutional takings. In 1962 the Supreme Court held municipal airport owners liable for "takings" ofprivate property resulting from low flyingplanes landing near neighboring communities 91
The implications ofthat holding created aneed for municipal airport owners to be able to mitigate their liabilityin some way. Nonetheless, the Ninth Circuit has made clear that the proprietor power isnot limited to those circumstances, and allows municipalities to enact regulations based on any "rational belief that the ordinance willlimit the possibility ofliability or enhance the quality ofthe city's human environment.Yf While the Ninth Circuit has so farapplied this exception to Aviation Act preemption only in the context of allowing acityto limit noise by ordinance.Y there is a strong argument that the same principles should apply in other contexts inwhich amunicipality attempts to impose operational conditions to improve local environmental conditions, despite the generally narrow scope ofmunicipal regulatory power over airport operations. The Second Circuit, for example, has explicitly noted that the proprietor

9049 u.s.c. 417 1'\(b) (.0). tJl In this case, landings occurred at lo\,\' levels of altitude causing people to become nervous, distraught, unable to sleep, and in CCrl:11n C1SCS the noise was 8C) intense it caused property datnagc to lhc homes. Griggs v. County ofi\lll'gheny~ Pennsylvania, 369 U.S. K4 (1962). 92 i\laska ,\idiot's, Inc. v. Cit) of Long Beach. 951 F.2d at 982; sec Santa Monica Airport \,,'n. v. Cit) of Santa \!otliCl659 F.2J 100,104, n.f ()'\; Cit. 1981).t)?J In~anta Monica Airport .vss'u. v. Cit:, of Sant-a Monica, t-he9th Circuit stared "a municipal operator

... can govern the noise levels of planes which have taken

off from it:both before and for areasonable distance after the wheels have left rhegrounJ.'1 Id. exception to preemption allows cities to regulate within the "narrowly defined subject matter" of "noise and other environmental concerns atthe locallevel."94 In

### National HelicopterCorp. of America v. Ciryof

New York" the Second Circuit upheld aphase-out plan which would eliminate weekend operations and impose weekday and weekend curfews, for areduction of

### 47% in total operations. The court reasoned that allofthese regulations were intended to enhance the local human environment and reduce liability to the municipal

. 95 propnetor.
The regulations atissue in

### National HelicopterCorp.of America go farbeyond the area of simply regulating narrowly to reduce noise, and instead reach wellinto the basic operations ofthe airport. Reducing municipal takings liability and enhancing the quality ofthe local human environment are goals that, by their terms, have application farbeyond noise regulation. Indeed, there isno principle that has been articulated that would explain why proprietor powers should be limited to noise-related regulation. Thus, while the Ninth Circuit has never directly addressed the issue ofwhether proprietary regulation of airport operations may include environmental regulation beyond or apart from the control ofnoise, the principles offered by the Ninth Circuit and other courts appear to be consistent with interpreting the lawin this way, and no court appears to have held otherwise.

A contrary argument could be made that federal authority over airport operations is extremely broad and subject only to the narrowest ofexceptions, and that that authority leaves no room for regulation here. Under this reasoning, the FAA needs this broad authority to fulfillits mandate to ensure safety, security, and predictability in airport

94 National IIclicoprcr, U71:.}d 81, 88 (2nd Cir. 1(98); BritishAirways Bd. v. Port Authority ofNew York, 558 F.2d 75, 8}·8} (2nd<:ir. 1(77); Sec also, Westql'1 ,\irlims, fric.v. Port :\lIthOl'ityofNew York and NcwJersey, (l58F'supp. 952, 956 (S.D.N.Y. 1(86). 95 National Helicopter. U7 F,}d at 89·91. operations. A "slippery slope" argument canbe made that we risk allowing the exception ofproprietary regulation to swallow the general rule that the FAA has authority over airport operations. Ifairports were subject to wide-ranging local regulation to mitigate or avoid environmental impacts, there would be arisk of undermining the FAA's appropriate role and mission. Itwould follow that although the Supreme Court in .1' 

### CiryofBurbank and the Ninth Circuit have explicitly allowed local proprietary regulation of airport operations relating to noise, this authority should be interpreted narrowly, and local regulatory authority in other areas should be sharply limited orheld not to exist. Acknowledging the FAA's strong interest in ensuring safety and predictability, we nonetheless believe there isroom for local regulation ofnon-noise environmental impacts. There isno principle articulated in the cases cited above that would distinguish noise impacts from other localized environmental impacts.
Moreover, in areas such aslocal environmental regulation, inwhich local and state governments have traditionally made and enforced laws, aswell asin the context ofproprietary regulation to ensure that locally-operated entities are operated safelyand in away that minimizes the legalliability ofthe local operator, the scope ofpreemption isparticularly narrow. (2)Cities must exercise proprietary authority over airports in areasonable, non-discriminatory fashion.

Even ifmunicipal action would otherwise fallwithin the proprietary exemption to preemption, itmust not run afoul ofthe Commerce Clause or the Equal Protection Clause ofthe U.S. Constitution. Thus, in enacting regulations, the municipal proprietor must be careful to "avoid even the appearance ofirrational orarbitrary action" to satisfy equal protection concerns." Municipal airport proprietors have been allowed to

exercise local

%Id. at is'). regulatory power provided such control is exercised reasonably, non-discriminatorily, and without pointing a "dagger

... at the heart ofcommerce.,,97 Municipal ordinances willwithstand constitutional challenge based
on alleged violations ofthe commerce clause ifthe statute regulates "even-handedly to effectuate a legitimate local public interest.Y" The local proprietor isgiven deference in passing regulations and unless it imposes aburden on commerce that is "clearly excessive inrelation to the putative local benefits," such an ordinance willbe upheld." Similarly, local regulations willwithstand equal protection challenges ifthe court finds 

### a'!Yrationally related state interest in the law.lOo

InNational Helicopter, the 47% reduction in operations was debated in adissenting opinion which contested the seemingly "arbitrary and unreasonable" nature ofthe regulation.l'" This specific ordinance was not supported by evidence ofan appropriate percentage ofreduced aircraft operations which would mitigate noise impacts on the surrounding communities, making the 47% seem arbitrary to the dissenting judge.lo2 The majority reasoned, however, that "it isunrealistic to insist that aproprietor justify by some scientific method a specific percentage reduction in operations in order to achieve the general result of areduction of excessive noise."lo3 It stated further that "if there is areasonable prospect ofbeneficial effect" the regulation should be upheld.l'" More recently, in ClqyLary Aviation v. CityofLos Angeles, the "Non-Addition Rule," a regulation that restricts the amount oftime certain aircrafts can be present at the 97 British Airways Bd., 558 F.2d at 83.

')8 Pike v. Bruce Church, lnc., 3')7 U.S. t37, 142. ')') Iii. 100 Nutional Helicopter, 137 F.3d at is') (emphasis added). [0] Iii. at ')2. 102!d. unu

### c»: 104

### u Van Nuys Airport each year,105 was upheld by afederal district court against an equal protection challenge. lOG The court stated that "the challenged lawmust be upheld ifthere is any reasonably conceivable set of facts that could provide arational basis for the classification.t'" Itwent on to hold that the challenged law, ade facto ban on allaircraft exceeding anoise threshold for 335 days per year, passed this equal protection test.108 Comprehensive bans on certain types ofaircraft that would otherwise be able to use the airport, however, are not allowed. These types ofrestrictions are viewed as discriminatory and violate the equal protection clause ofthe Constitution.l'"

For example, in Santa Monica Airport Association v. CityofSanta Monica, the comprehensive jetban in Santa Monica was struck down.l'" The court held that other permitted types ofaircrafts which utilized the Airport made just asmuch noise as the banned jets.1l1Therefore, the court reasoned, there was no rational connection between the purpose ofthe ordinance (to mitigate noise) and the ends used to achieve the purpose (banning jets).112 The rationale behind the disallowance ofthese types ofregulations is that ifthe specific type of aircraft can otherwise meet size, weight, safety, noise etc. characteristics enabling it to take off and land atthe Airport, then itis arbitrary and discriminatory to

105'The n:gtllatinn applies only to Stage 2 aircrafts with noise levels of 77 dll:'\ or greater, and can only be parked, tied down or hangared at the Airport for no more that 30 days each YC;lr~ crc·ating the net effect that 335 days each year these t)1x's of aircrafts arc banned from using the Van Nuys Airport. Clay Lacv v. City of Los .\ngeb, 2001 WI !'J41WiSat '1 (CD. Cal.).10() The court' distingui::;lllxl this else from SaJi/a ,'HolliCr.l"lirpfJrl/4.ff'n. ECilY (If.Lmt'l Alf)fliL'(/ by nor-ing that under the non-addition rule, louJ aircraft' "cannot,

under any circumstances, usc the Airport" more than is allowed by the rule, and there was therefore no disparate treatment by the regulation as there was with the Santa Monica jet 10011. ClayLao', 2001 WL 1941G'JR at *1 (CD. CaL). 107 fd 1IlSId. at qf\. 109 U.S. COI1St. Amend. XIV, § 1. 110 Santa Monica .virport Ass'n, v. Cily of Santa Monica, 4Hl F.Supp. 927. 94~ (CD. C\ 1979). 111 

### u 112 Id.
exclude acertain type of aircraft just because itis ajet or otherwise.i" The same comprehensive jetban enjoined in the 1979 case was also held to be aviolation ofthe commerce clause. The court held that the ban placed a substantial burden on interstate commerce which outweighed the local interest in supporting the legislation.!" In sum, courts have recognized both the delegation ofregulatory power to airport proprietors and the limitation ofthis power to the issuance ofnondiscriminatory regulations that are not arbitrary, but rather are based on reasonable and legitimate interests in mitigation ofliability or enhancing the community's "human environment."

The City of Santa Monica can set forth regulations to further these interests, consistent with other applicable laws, as long as those regulations are non-arbitrary, non-discriminatory, and have arational relationship to legitimate purposes such asreducing the City's exposure to liability for nuisance or protecting the surrounding community's "human environment." Overall, there should be room for the City to take actions that would address local environmental impacts from airport operations without running afoul of the Aviation Act.


### b.The effect oftheAgreement on the City'sproprietor powers.
A municipality willretain the right to regulate pursuant to its proprietor powers unless they are contracted away.1I5 Contracts which have been held to compromise proprietorship ofan airport include those that involve achange in ownership, operation, promotion ofor ability to acquire easements necessary to airport

. 116H operatlOns. owever,

ll3ld 114Id 115 Alaska Airlines v, City of I.ong Beach, 951 F.2d at 982. 116 San Diego Unified Port Dist. v. Gi'1I)turco, 651 f'.2d 1306,1316·1317 (9,1;eir. 1981).
ifthe contract does not affect the management, operation, or liability for nuisance ofthe municipality, the proprietor powers willnot bejeopardized. 117 Here, the Cityhas not broadly contracted awayits proprietor powers by entering into the Agreement. Proprietor powers were given up upon the signing ofthe Agreement only to the extent the Agreement expressly resolved particular operational issues in away that would limit the City's use ofthose powers. The Agreement limits the City's proprietary power to issue regulations that contravene specific operational provisions set forth in the Agreement.118The Agreement's limitations on the City's powers nonetheless extend only to the specified issues addressed.l "
Where the Agreement limits the City's proprietary powers, it does so in amanner that expressly constrains those limitations to specific operational issues designed to abate or mitigate noise impacts. Section 15 of the Agreement states that "the parties agree to cooperate and work toward the abatement ofaircraft noise by the following methods." Byagreeing to these measures, the Citybyimplication has not agreed to contract awayits proprietary powers with respect to other unspecified issues. Moreover, with respect to allother proprietary authority over the airport, the Agreement preserves the management and regulatory authority that is characteristic ofproprietor powers. The Agreement states: "The Cityhas the responsibility to managethe Airport, including the ability to take reasonable action designed to abate the impact ofnoise from

aircraft operations on surrounding communities, in accordance with the principles of

### Santa MonicaAirport Association v. CityofSanta Monica and 

### British

.

117 :\bska ,\irlines v. City ofLong Beach, 951 F.2d at 982. 118The Santa Monica Airport Agreemenl §7 (1~)84);Hi' ~~§ n. 14, 16,17,18,19.22,24,25. 119 See id at ~}§2(a)(iii), 14. 

### .Ainuays Boardv.PortAuthority ofNew York.,,120Both ofthese cases recognized the existence ofmunicipal proprietor powers and discussed their proper application, including the authority to regulate to enhance th~ surrounding "human environment" or to reduce municipal liability.121 The Agreement also expressly refers to the City as having proprietary authority over the airport, stating that "[t]he parties recognize and agree that itis appropriate for the City to exercise its proprietary authority to adopt ordinances and regulations applicable to lessees and users ofthe Airport consistent with the terms ofthe Agreement.,,122While this provision ofthe Agreement appears within a specific paragraph in the Agreement dealing with Fixed Base Operators, there isnothing in the Agreement to indicate that this principle islimited. On the contrary, the language ofthis provision broadly and clearly states that the Cityretains proprietary authority, with the only limitation being consistency with the Agreement's express terms.



### c.The effectoftheAirportNoise and Capacity Actonthe City's municipal proprietor powers.
There is aquestion whether and to what extent the Airport Noise and Capacity Act of 1990 (ANCA) preempts or limits local regulation ofthe Santa Monica Airport under the City's reserved proprietary powers. Apart from the Aviation Act, ANCA separately provides limitations on local governments' ability to regulate airport noise and access. While this is adifficult question, the City has a significant argument that local regulation consistent with the Agreement isnot preempted byANCA.

1211Jd.al 2(a)(iii). 121 :;,mla Monica Airport .vss'n. Yo Cily "I' :;anta Monica, 659ji.2d ar 104.n.5. Accord, AlaskaAirlines v. Cily ofLong Beach, 951 F.2d 977, 982 (9d
, Cir. 1(92). 

### 122Jd.

at (i 14.
ANCA was passed to implement airport noise policy atthe national level. The FAA established aircraft noise standards for each aircraft's flyover, lateral, and approach positions, inwhich noise levels are measured by using "effective perceived noise level" (EPN dB) measurements.V' Aircraft are categorized in stages ranging from one to four, depending on each aircraft's EPNdB levels.124 Under the regulations, stage 4 aircraft are the quietest. ANCA regulates stage 3 aircraft and sought to eliminate allstage 2 aircraft. 125 The Act set forth uniform regulations for allcommercial and private stage 2 and stage 3 aircraft over 75,000 pounds.i" The Act states that "the Secretary ofTransportation shall issue regulations establishing anational aviation noise policy which takes into account the findings, determinations, and provisions ofthis subtide, including aphase out and non-addition of Stage 

### 2aircraft.,,12?

The Act also states that "[t]he national aviation noise policy

... shallrequire the establishment, by regulation

... anational program for reviewing airport noise and access restrictions on operations of Stage 

### 2 and Stage 3 aircraft.,,12sANCA and 14 C.F.R. Part 161, the FAA's rules implementing the relevant provisions ofANCA, require airport operators to collect and analyze data tojustify any noise or access restrictions at airports, and inmost cases ultimately to seekFAA approval ofairport restrictions.t" City officials have asserted that ANCA prevents the City from imposing any new restrictions on aircraft operations without first going through this12.' 14C.I'.R. Part %, ApI's. ,\ and II.

12414 c.r:.R. § %.1(t). 125 See 4') U.S.c. §4752ii(bj(:'», 4') USC. §47523(~)

.. 1264') USC. §4752ii(a). 1274') U.S.c. §47523(a). 128 49 USc. §47524(a). 129 14C1:.R Pari 161;49 USc. :\47524(b)(I), (e)(I).
process ofnotice, data collection, review, and approval, informally referred to as the "161 process.,,130The statute provides several exceptions to the notice, review, and approval process, most ofwhich "grandfather" in existing restrictions and regulatory instruments. Relevant here isthe exception where "a [pre-existing] intergovernmental agreement including airport aircraft noise or access restriction" existed on November 5, 1990. 131 The Part 161 regulations implementing this section ofthe statute state that "[t]he notice, review, and approval requirements set forth in this part do not apply to airports with restrictions as specified in [49 U.s.c. §47524(d)]: [including]

.... (3)An intergovernmental agreement including airport aircraft noise or access restriction in effect on November 5,1990."132ANCA created noise standards to be applied to airports at anational level. Congress found that prior to ANCA's passage, inconsistent and uncoordinated noise-related restrictions on aviation had the potential to "impede the national transportation system.,,133 Exempting airports with prior intergovernmental agreements might in some cases be seen asin tension with
acoordinated system. Nonetheless, the exemptions can be explained as areflection ofCongress' sense that prior agreements already furthered the purposes ofANCA bybalancing federal and local interests, and Congress' intent to honor the bargains struck byprior agreements and to minimize ANCA's interference with existing arrangements. There isno question that the Agreement itselfisexempted from ANCA's Part 161 requirements and isin force today, asitincludes noise and access restrictions, and was

no Interviews with Bob Trimborn and Martin 'lachiki, JUpl''' notes 25, 29. 1314') U.S.C. §47524(d)( I). 1.'2 14CVR. I(,1.7(b). 1),4') USC:\. §47521.
enacted prior to ANCA's effective date. Moreover, itis clear from the statute that any amendments to the" Agreement that would not reduce or limit operations or affect safety would be exempt from the 161 process.134Byimplication, ifthe Citywere to attempt to restrict aircraft operations further in the areas addressed by specific provisions ofthe Agreement, such an action would arguably trigger the 161 process, as restrictions that would constitute post-1990 amendments to the Agreement that do "reduce or limit aircraft operations or affect aircraft safety."135 The remaining question iswhether the 161 process would apply to
new restrictions that do not require amendment ofthe Agreement

- the most likelyuse ofthe City's proprietor powers to improve airquality.

A broad interpretation ofthe exemption from notice, review, and approval requirements for prior intergovernmental agreements would recognize that those agreements, likemost binding agreements, were the product of anegotiating process, and abrogating some portions of such an agreement while leaving others intact could leave anomalous and unfair results. Such an interpretation is consistent with the wording ofthe statute, which exempts "intergovernmental agreements" from the 161 process. The fact that the FAA's Part 161 regulations are even broader, stating that the 161 process does not apply to "airports" that
are subject to prior intergovernmental agreements, lends weight to interpreting the exemption to apply to any new regulation of access at the airport that does not conflict with orrequire amendment ofthe Agreement's own express terms.

114 "Subsequent amcndmcru]s] t-oan airport aircraft noise or access agreetncnt O( restriction in effect on November 5,1990, where the amendment Jot's not reduce or limit nircmft operations or affect' aircraft: safety:' arc exempt: from ANC,\'s notice, review, and approval requirements. 49 U.S.C. ~~ 47S24(d)(4). n5.1'",id.Even ifthe statutory exemption from ANCA's notice, review, and approval process were read more

narrowly than FAA's own regulations interpret it, there is a significant argument that ifthe Citywere to regulate aircraft operations pursuant to its reserved proprietary powers in away that does not conflict with specific provisions ofthe Agreement, the City's action would be authorized under the Agreement, and thus Part 161's process requirements would not apply in any event. Under this reasoning, the Agreement's effect ofreserving proprietary powers for the City

- allowing further regulations not inconsistent with the Agreement

- was presumably part ofthe overall bargain struck between the FAA and the Cityin order to keep the airport operational. Thus, the exemption from the notice, review, and approval process ofthe whole negotiated agreement between the City and the FAA would include any noise or access regulation allowed under the Agreement, including those developed orimplemented in the future. This interpretation ofANCA would acknowledge the City's pre-existing and retained proprietary authority, while acontrary interpretation would result in the Cityretaining none ofits reserved proprietary authority after ANCA's passage. Given that Congressional action typicallyisheld not to abrogate pre-existing contractual rights,l36 and that Congress made aspecific "grandfather" exception to the Part 161 requirements for airports with intergovernmental agreements, itwould make little sense forANCA to have destroyed anyproprietary rights retained by the City. 14C.F.R. section 161.7(d)(1) supports this idea, asitconfirms that except to the extent required byANCA, the regulations do not "eliminatej], invalidatej], or supersedej]

... [e]xistinglaw with respect to airport noise or access restrictions by local authorities."
13(, Si". t.~.•Carteret SOlvings Bank v. Office of Thrift Supervision. %3 F.~d 5(,7,581 (3d CiL 1(92). Although we believe that the argument in favor ofviewing the exemption in this broad way carries significant force, both because FAA's own regulations support this position and because the policies behind the statute appear to favor it,itis also possible that acourt would reject this view. A court, looking atthe regulatory scheme as awhole or atthe statutory language stating that an "intergovernmental agreement" is exempt from the Part 161 requirements, might conclude that only those restrictions specifically set forth in an intergovernmental agreement, and not anynew restrictions enacted pursuant to pre-existing powers reserved in such an agreement, are exempt from ANCA's requirements ofnotice, comment, and approval.

Under this view, new unilateral regulations or other actions by the City that affect airport operations, even if consistent with the Agreement, could be viewed asindependent, new restrictions on airport operations rather than aspart ofthe Agreement. Moreover, ifacourt were to conclude that reservation ofproprietary powers not otherwise affected by the Agreement was merely incidental to the Agreement, itmight hold that any future attempts to regulate airport operations to limit airemissions are unrelated to the Agreement, and therefore subject to Part 161's requirements. Under this less expansive view ofthe reservation ofmunicipal authority, and ofANCA's application to the Agreement, new attempts to regulate noise or access, even if they are consistent with the Agreement and do not require amendment ofthe Agreement, would be subject to the 161 process. 137 We believe that the more expansive view both ofthe Agreement's reservation of municipal authority, and ofANCA's application to the Agreement, isconsistent with the bargain struck by the Agreement and with the FAA's own regulations interpreting

137 It i~also possible that upon the expiration of thci\grccn1cl1t in .July of 2015. if the ;\grccmcnt is not extended, ,ANC,\ n1:lYbegin to apply to the Airport, thus ITtiuiring the "1() I process" to lx. irnplemcnrcd at least for Iucr-cnacrcd restrictions.
ANCA. The language used by Congress in describing the scope ofthe exemption for intergovernmental agreements isbroad, and the wording ofthe FAA rule implementing the exemption, are expansive. And the Agreement allows the City to retain proprietary powers except where the Agreement explicitly limits the useofthose powers by setting specific standards that the City cannot unilaterally change. A contrary result

would mean that ANCA operated to revoke allproprietary powers ofthe City to regulate noise and access, abrogating the Agreement's terms that reserve those powers. Thus, we believe there is force to the position that ANCA's application does not prevent the City from taking action within the scope ofits proprietary powers in ways that do not conflict with the Agreement's express terms.


### d. The effect ofCleanAirActpreemption on the City's use ofmunicipal proprietor powers.
Not only do the Aviation Act and ANCA preempt much state and local regulation of airport operations, but the Clean Air Act ("CAA") also preempts much state and localregulation ofaircrafts' emissions of pollutants into the air. The scope of amunicipality's proprietary authority to restrict aircraft emissions has
never been adjudicated, and that there is some risk that acourt would interpret that authority extremely narrowly. However, we believe that there is a significant argument that the Citypossesses sufficient authority, as the Airport's proprietor, to take actions to address airport operations' localized airpollution impacts. The CAA regulates airquality throughout the nation. It applies to aircraft emissions: section 231 of the Act requires the EPA administrator to "issue proposed emission standards applicable to the emission of any airpollutant from any class or classes of aircraft engines which in hisjudgment causes, or contributes to, airpollution which may reasonably be anticipated to endanger public health or welfare.,,138 The CAA also mandates that "the Secretary ofTransportation

... prescribe regulations to insure compliance with [all standards prescribed under section 231]

... including] provisions making such standards applicable in the issuance, amendment, modification, suspension, orrevocation ofany certificate authorized by the Federal Aviation Act.,,139

Further, under section 233 ofthe Act, "No State orpolitical subdivision thereof may adopt
or attempt to enforce any standard respecting emissions of any airpollutant from any aircraft or engine thereof unless such standard isidentical to a standard applicable to such aircraft under this part.,,140 Thus, under the CAA, the EPA has the exclusive regulatory authority to set aircraft emissions standards.l"
The CAA's language, cited above, indicates astrong intent to create auniform, national set of emissions standards for airpollutants emitted by aircraft. Cityofficials have expressed the belief that the preemptive effect of the CAA prevents the City from regulating even localized airpollution impacts.i'" Indeed, on its face, the statute appears to leave littleroom for local regulation of airquality. Nonetheless, we believe that the City may wellretain the ability to use its proprietor powers to regulate in this context.
The same arguments that underpin the use ofmunicipal proprietary authority to mitigate local environmental impacts ofairport operations apply generally to federal preemption in other contexts, as long
as the municipal action stems from proprietary power. The proprietary exception to preemption

13842 U5.C :\757 I(a)(2K\) 139 42 U.~.C. § 14042 U5.C § 141 Aviation & Emi-:;s10fls: ;\ Primer, I<'t:dcral Aviation Adminisrration Office of [1:nvir0I1Inent and r':ncrgy, -12-13 (Jan. 20(15) 1.11 h:11':// \V\\w. fa:1.gO\' Iregu!at io,,"_policic,; policy_guidance; cmicpolicy; medial ,\ I':I'RIMlm. pdf. 142 Interviews vvithBob Trimborn and .\tutin Tachiki. .flf;"Jm note:"25. 2~. applies in allstatutory contexts where astate acts in aproprietary capacity in away that affects interests otherwise regulated only by the federal government. So, for instance, in the context oflabor law, the Supreme Court has held that "[w]hen aState owns and manages property, for example, itmust interact with private participants in the marketplace. In so doing, the State isnot subject to pre-emption by the NLRA, because pre-emption doctrines apply only to state regulation.v':" Thus, there is a significant argument that municipal proprietary action to address airimpacts is appropriate despite the generally broad scope ofClean Air Act preemption. Such action to address "aircraft noise and other environmental concerns atthe locallevel" ispermissible.l'" Particulate airpollution is apeculiar local concern which affects the surrounding

human environment. And the City, as airport owner, would bejustified in taking action to reduce its liability for nuisance, takings, or other legaltheories under which the Citymight have to compensate local residents for the environmental impacts ofaircraft operations. Although there is scant case law on the subject, itis noteworthy that in another context, afederal district court in Southern California has upheld aproprietary exception to broad preemption under aprovision ofthe Clean AirAct functionally identical to the one at issue here. In Engine MJrs. Ass'n v. South CoastAir Qualiry Management Dist., 2005 WL 1163437 (C.D. Cal. 2005), the court considered whether, and to what extent, another "proprietary" power
- agovernment agency's power to regulate purchasing decisions for public fleets, acting as amarket participant

- allowed the airquality regulator to require the purchase oflow-emissions vehicles for public agencies'

t·n Building and Con st. Trades Council of Metropolitan Dist. Y. Associarcd Builders and Contractors of Massachusetts/Rhode Island, lnc., 507 U.S. 218,227 (19<).1). 144 National Helicopter Corp. of America Y. City of New York. 1.17 F.3d 81 at 88. automobile fleets, despite the Clean Air Act's generally broad preemptive effect.145 The U.S. Supreme Court had held that the preemptive effect of Clean AirAct section 209, the language ofwhich mirrors the language ofthe section atissue in the aircraft context.i" applied to make the so-called "fleet rules" invalid if they constituted regulation ofemissions under the Clean Air Act.147 At the same time, the Court noted that the fleet rules might not be preempted for various reasons not presented to the court in that case, including that the rules might be characterized asinternal purchasing decisions.148On remand, the district court held that the fleet rules were faciallyvalid and not preempted, because the airquality management district was exercising proprietary power as amarket participant by limiting state and local governments' fleet

. 149 purchasing,
The court noted that although state regulation ofmobile sources (including both automobile and aircraft emissions) to "enforce any standard" relating to emissions control isbroadly prohibited under the Clean Air Act, "'[r]egulation' excludes state proprietary actions.,,150The court explained that "Congress did not 'clearly and manifestly' intend that 'attempt[ing] to enforce any standard' should include proprietary actions because it characterized the statute aspertaining only to state regulation."151The court reasoned that 42 U.S.c. section 7416, which retains state authority over airquality except to the extent provided in preemptive statutory provisions cited above, "limits the reach ofthe

145 It ispossible that appeals to the Ninth Circuit will ultimately result in solidification of [he principles articulated in this opinion, Of) on the other hand, in modification or even reversal (if the decision, 14()"No State or any political subdivision thereof shall adopt or arrcmpr to enforce any standard relating to the control of emissions from new 1110tf)[ vehicles or
new motor vehicle eng.ines subject to this part.

. " 42 u.s.c.§751:1(a). 147 Engine :\Ifrs. ;\ss'n Y. South Coast ,\ir Quality \lan:Igcment Disr., 541 U.S. 246, 248-25H (20(H). 14tJ Id. at 25859 (·1') Engine \Jfrs. ;\ss'n v. Snuth Coast .vir Quality Managcrncnr Dist., ZOOS\VL 11(,3437 (C.D. Cal., ZOOS). 150 ld. at '5 (citing Build.ing and Const, Trades Council of Metropolitan Dist. Y. .vssociatcd Builders and Contractors of Massachusetts/Rhode lslan.l, Inc., 507 u.s. ar '227). 15J 

### u at '5 (emphasis added). Supreme Court's definition of 'attempt[ing] to enforce any standard.' Applying the market participant doctrine to preemption under the CAA would therefore be consistent with the language ofthe statute.,,152 The court went on to note that allowing proprietary actions to improve airquality by the State "is also consistent with the purposes of

### §209," because Congress proclaimed in the Clean Air Act that states retain primary responsibility for maintaining airquality.153
Thus, although itis clear that the Clean AirAct's preemptive effect on local governments' efforts to regulate airquality isvery broad, there is aweighty argument, articulated by the district court in Engine MJrs. Ass'n,
11that where astate or local government acts in aproprietary capacity itmay nonetheless take actions that

have the effect oflimiting emissions. It canbe argued, on the other hand, that even ifastate agency may control state action as amarket participant, amunicipality or state may not directly regulate private parties' actions in order to improve airquality, as any action taken by the Cityto limit airport operations would do. The district court in

### EngineMfrs.Ass'n found that the fleetrules were valid atleast as applied to local and state government vehicles, but did not reach the issue ofwhether application ofthe rule to private parties would be valid. Sothere is aquestion whether orhow the court's reasoning would apply to state orlocal action affecting private parties directly, or to direct regulation to protect the environment. Moreover, that
caseis stillin the courts, and the regulated parties continue to argue that itwas wrongly decided.
[521d 15'!d. at '(;.
We believe that the reasoning ofthe court in

### EngineMfrs.Ass'n is sound and canplausibly apply in abroad range ofcircumstances, likelyincluding municipal airport operators' proprietary regulation ofaircraft emissions. Regulations adopted with the purpose or effect ofprotecting the environment may be nonetheless proprietary. Although the fleetrules affect purchasing decisions, in the most literal sense the fleetrules are "regulations" respecting "emissions"

- they are administratively-adopted rules than operate to ensure that only low-emitting cars willbe allowed to operate in certain contexts. The court, citing ample precedent, held that the form ofthe state action was not dispositive; even adopted regulations canbe proprietary actions by the government. The court also noted that the rules both had the purpose and would have the effect oflimiting emissions, and, againciting ample precedent, held that the action was nonetheless proprietary. 154Moreover, under the cases cited above dealing with "proprietary" action in the context of airport regulation, action by alocal government that owns or operates an airport to protect residents from aircrafts' local environmental impacts canbe viewed asinherently proprietary rather than regulatory, even if itimpacts private parties directly, aslong as the use ofthat power isreasonable and limited to protecting residents from local impacts. Authority over governmental purchasing decisions is one type ofproprietary power, and authority to mitigate localpublic health impacts and to minimize governmental liabilityis another type ofproprietary power; each type ofpower canbe exercised without running afoul offederal preemption, under the samebasic principles. Of course, the holding and reasoning ofthe district court in 

### EngineManufacturersare not binding on other courts. And itispossible that afuture published appellate

1541d. at ~'~)-*11 (citing numerous cases).
decision in that case or another casewillshed new light on the nature ofproprietary powers, either consistent with or contrary to the district court's opinion. Nonetheless, currently, the court's decision, taken together with the body ofcases that allow airport proprietors to take actions to protect local public health despite the preemptive effects ofthe Federal Aviation Act, shows that there isastrong argument that the City of Santa Monica retains some authority to take action to protect local airquality ifairport use is affecting nearby residents. Ifevidence were to show that airport operations have alocalized impact on air quality, acourt following the principles ofthese cases should conclude that the City ofSanta Monica may take steps to require the airport to mitigate those localized airpollution impacts.


### VII. Conclusion

Even without the agreement ofthe FAA, the Cityasproprietor would bejustified in taking steps to ensure that the local environmental impacts ofjet operations, including airemissions, do not reach levels that constitute anuisance to localresidents. Because the lawisnot well-developed in this specific area, the City would have to consider carefully how to regulate inthis areawithout exceeding its proprietary powers.Moreover, the City cannot unilaterally change express terms of the Agreement or enact regulations that

conflict with the Agreement. Nonetheless, within these parameters, the Cityhas the authority to exercise its proprietary powers to protect local environmental quality and to ensure that airport operations do not constitute anuisance or result in inverse condemnation claims. It isbeyond the scope ofthis paper to propose aframework for evaluating the limit ofthese powers or the appropriate scope ofmunicipal action. Nonetheless, there is evidence that tends to show that environmental impacts ofthe Airport are burdening local residents. The Citywould undoubtedly take on legalriskby asserting proprietary authority to regulate airport operations with the objective ofcontrolling emissions.
The issues involved are novel, and itislikelythat the FAA would take the position that the scope ofthe City's proprietor powers isnarrow. Thus, the City cannot be assured that acourt willhold that anyparticular action itmight take iswithin its legal authority. Nonetheless, courts should view favorably the efforts of a municipal airport proprietor to reduce or limit aircraft operations in away that istailored to address local environmental impacts and calculated to improve the quality oflife for local residents. We believe that a court should uphold the City's use ofnondiscriminatory, reasonable means to accomplish the proprietary goal ofensuring that airport operations do not unduly interfere with nearby residents' property and health,
aslong as doing so does not conflict with express provisions ofthe Agreement.

We also believe that the Cityhas asignificant argument that any such actions are exempt from the Part 161 notice, review, and approval procedure. Itwould be optimal for the City of Santa Monica and the FAA to ',' work together to develop and implement some reasonable regulations orrestrictions on use atthe Airport to help reduce the negative impacts ofjet operations on local residents. Ifthe FAA willnot work to accomplish these goals, the City may consider acting unilaterally, taking into account the legalissues discussed above and other practical considerations.