2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-21-2004

Khodara Env Inc v. Blakey

Precedential or Non-Precedential: Precedential

Docket No. 02-4038

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PRECEDENTIAL

UNITED STATES COURT OF

APPEALS

FOR THE THIRD CIRCUIT

No. 02-4038

KHODARA ENVIRONMENTAL, INC.,

GENERAL PARTNER, ON BEHALF

OF EAGLE ENVIRONMENTAL, L.P.

v.

*MARION BLAKEY; FEDERAL

AVIATION ADMINISTRATION;

CLEARFIELD-JEFFERSON

COUNTIES REGIONAL

AIRPORT AUTHORITY; DONALD R.

JOHNSON; PAUL SEKULA;

WILLIAM MIKSICH; FREDERICK G.

MURRAY; TIM MORGAN;

ROBERT E. REITZ; HENRY DEIBLE;

PAUL MCMILLEN;

MARK MCKINLEY;

JEFFERSON COUNTY; PINE CREEK

TOWNSHIP (Intervenor-defendants in

D.C.)

(D.C. No. 97-cv-00093E)

LEATHERWOOD, INC.

v.

THE PENNSYLVANIA

DEPARTMENT OF

ENVIRONMENTAL

PROTECTION; JEFFERSON

COUNTY, PENNSYLVANIA;

PINECREEK TOWNSHIP; FEDERAL

AVIATION ADMINISTRATION;

**MARION BLAKEY

(D.C. No. 01-cv-00018E)

Khodara Environmental, Inc.,

Appellant

*(Amended per Clerk's Order dated

01/16/03)

**(Amended per Court's Order dated

08/11/03)

ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF

PENNSYLVANIA

(Dist. Court No. 97-cv-00093E

and 01-cv-00018E)

District Court Judge: Honorable Sean

McLaughlin

Argued: October 24, 2003

Before: ALITO, FUENTES, and

BECKER, Circuit Judges.

(Opinion Filed: July 21, 2004)

William F. Fox, Jr., Esq. (argued)

J.P. Mascaro & Sons

320 Godshall Drive

Hurleysville, PA 19438

Attorney for Appellant
2

Teal Luthy Miller, Esq. (argued)

Scott R. McIntosh, Esq.

United States Department of Justice

601 D Street N.W.

Washington, DC 20530

Attorney for Appellee Federal

Aviation Administration and Marion

Blakey

Robert P. Ging, Jr., Esq. (argued)

2095 Humbert Road

Confluence, PA 15424

Attorney for Appellees Jefferson

 City and Township of Pine Creek

OPINION OF THE COURT

ALITO, Circuit Judge:

Khodara Environmental, Inc., the

general partner of a company (Eagle

Environmental, L.P.) that wishes to

develop the “Happy Landing Landfill” in

Jefferson County, Pennsylvania, contests

the District Court’s denial of its request for

a declaratory judgment that the Wendell H.

Ford Aviation Investment and Reform Act

for the 21st Century (“the Wendell Ford

Act”) does not prohibit the landfill. The

Federal Aviation Administration (“FAA”),

Jefferson County, and Pine Creek

Township argue that the Wendell Ford Act

does prohibit the landfill. In addition, the

FAA argues that Khodara and Eagle

(hereinafter collectively “Eagle”) lack

Article III standing and that their claim is

not ripe. For the reasons stated below, we

reverse and remand for the entry of the

declaratory judgment Eagle sought.

I.

For some time now, Eagle has

desired to develop a solid waste disposal

facility on land that it owns in Jefferson

County. The facility, which is located

approximately 5.25 miles from the DuboisJefferson County Airport, was intended to

accept municipal waste primarily from outof-state producers. In the early 1990s,

Eagle began to apply to the Pennsylvania

Department of Environmental Protection

(hereinafter “DEP”) for permits that were

needed to operate the facility, and the DEP

issued all of the permits that were

required. See Khodara Envtl., ex rel.

Eagle Envtl. v. Beckman, 237 F.3d 186,

189 & n.1 (3d Cir. 2001)(“Khodara I”).

After receiving these permits, Eagle took

steps to develop the facility, including

obtaining engineering studies of the site,

installing 12 groundwater monitoring

wells, beginning work on an access road,

and installing a perimeter silt fence. 

In September 1996, however, the

Pennsylvania Fish and Boat Commission

designated three tributaries near the

landfill site as wild trout streams. As a

result, the DEP determined that wetlands

in and around Happy Landing Landfill

were of such an exceptional value that they

should not be filled. Shortly thereafter, the

DEP revoked authorization to fill in any

wetlands and suspended the other permits.

Eagle appealed to the Environmental

Hearing Board. While the appeal was

pending, Eagle and the DEP entered into a
3

consent order and agreement that released

the bonds that Eagle had submitted in the

process of obtaining one of its permits. In

exchange, Eagle agreed not to construct or

operate the landfill until that permit was

reinstated and the applicable bonding

requirements were met. In September

1998, the Environmental Hearing Board

issued an administrative order affirming

the DEP’s suspension order. See Eagle

Envtl. L.P. v. Commonwealth of Pa. Dep’t

of Envtl. Protection, EHB Docket. No. 96-

215-MG, 1998 WL 612838 (Pa. Hrg. Bd.

Sept. 3, 1998). This decision was affirmed

by the Pennsylvania Commonwealth

Court, see Eagle Envtl. L.P. v.

Commonwealth of Pa. Dep’t of Envtl.

Protection, No. 2704 C.D. 1998 (Pa.

Commw. Ct. 2001); App. at 122, and the

DEP’s suspension order became final

when the Pennsylvania Supreme Court

denied further review. See Eagle Envtl.

L.P. v. Commonwealth of Pa. Dep’t of

Envtl. Protection, 800 A.2d 934 (Pa.

2002); App. at 9a.

In October 1996, while these state

proceedings were in progress, Congress

enac ted the Fede ral A viatio n

Reauthorization Act of 1996 (“FARA”),

Pub. L. No. 104-264, 110 Stat. 3213.

Section 1220 of FARA, which was drafted

by two members of the House of

Representatives from the area near the

Happy Landing Landfill site, was

apparently “intended to single out Happy

Landing Landfill for regulation.” See

Khodara I, 237 F.3d at 190 n.4. Because

landfills tend to attract birds and because

birds can present a safety problem for

aircraft flying at low altitudes, the FAA

regulates the development of landfills near

airports. It appears that the Happy

Landing Landfill site was permitted by the

FAA regulations in effect before FARA

was enacted, see id. at 189 n. 3, but

Section 1220 of FARA imposed an

additional restriction that applied only

under very narrow circumstances. 

Section 1220 provided in relevant

part:

For the purpose of

enhancing aviation safety, in

a case in which 2 landfills

have been proposed to be

constructed or established

within 6 miles of a

commercial service airport

with fewer than 50,000

emplanements per year no

person shall construct or

establish either landfill if an

official of the Federal

Aviation Administration has

stated in writing within the

3-year period ending on the

date of enactment of this

subsection that 1 of the

l a ndf ills would b e

incompatible with aircraft

operations at the airport,

unless the landfill is already

active on such date of

enactment or the airport

operator agrees to the

constr u c tion o r

establishment of the landfill.
4

49 U.S.C. § 44718(d) (amended by Pub. L.

No. 106-181, § 503(b), 114 Stat. 61, 133

(2000) (codified at 49 U.S.C. § 44718(d))).

Since the Dubois-Jefferson County Airport

was a “commercial service airport with

fewer than 50,000 emplanements per year”

and since two landfills (Happy Landing

Landfill and one other) had been proposed

for construction within six miles of the

airport, Section 1220 was potentially

applicable to that airport. Moreover,

according to a statement attributed to one

of the sponsors of this provision, the

DuBois-Jefferson County Airport was the

only airport in the country to which

Section 1220 applied. See Khodara I, 237

F.3d at 190 n.4. 

After FARA was enacted, Eagle

commenced this action, seeking, among

other things, a declaration that Section

1220 was unconstitutional and that it did

not apply to the Happy Landing Landfill.

In March 1999, the District Court granted

partial summary judgment in favor of

Eagle, holding that Section 1220 failed

rational-basis review under the Equal

Protection Clause. See Khodara Env’t,

Inc. v. Beckman, 91 F. Supp. 2d 827, 850-

57 (W.D. Pa. 1999). Although the Court

found that the government had a legitimate

interest in preventing aircraft bird strikes,

the Court saw no rational justification for

the provisions that: (1) limited the ban to

cases where exactly two landfills had been

proposed; (2) restricted the provision to

airports with fewer than 50,000 annual

emplanements; (3) covered only

commercial, and not commuter, airports;

and (4) limited the statute to purely

retrospective effect. Cross-appeals were

taken to this Court.

While these appeals were pending

before us, Congress enacted the Wendell

Ford Act, which replaced Section 1220 of

FARA with a new and somewhat broader

provision. Section 503(b) of the Wendell

Ford Act, 49 U.S.C. § 44718(d) provides

in pertinent part:

(1) In general.–No person

shall construct or establish a

municipal solid waste

landfill . . . that receives

putrescible waste . . . within

6 miles of a public airport

that has received grants

under chapter 471 and is

primarily served by general

aviatio n aircraft and

regularly scheduled flights

of aircraft designed for 60

passengers or less unless the

State aviation agency of the

State in which the airport is

located requests that the

Administrator of the Federal

Aviation Administration

exempt the landfill from the

appl icati o n of this

s u bsecti o n and th e

Administrator determines

that such exemption would

have no adverse impact on

aviation safety. 

(2) Limitation o n

applicability.–Paragraph (1)

. . . shall not apply to the

construction, establishment,
5

expansion, or modification

of, or to any other activity

undertaken with respect to,

a municipal solid waste

landfill if the construction or

establishment of the landfill

was commenced on or

before the date of the

enact ment of this

subsection. 

49 U.S.C. § 44718(d)(1)-(2).

In August 2000, the FAA

promulgated FAA Advisory Circular

150/5200-34 to provide “guidance on

complying” with the Act. For our

purposes, the Circular’s most important

portions are its definitions of the terms

“construction” and “establishment.” The

Circular states:

a. Construct a municipal

solid waste landfill means

excavate or grade land, or

raise structures, to prepare a

municipal solid waste

landfill as permitted by the

appropriate regulatory or

permitting authority.

b. Establish a municipal

s o lid wa ste land fil l

(MSWLF) means receive

the first load or putrescible

waste on site for placement

in a prepared municipal

solid waste landfill.

FAA Advisory Circular 150/5200-34,

Appendix 1 (a)-(b) (emphasis in original).
6

Because of the legal change

effected by the Act, we vacated the portion

of the District Court’s opinion that had

held that Section 1220 of FARA was

unconstitutional, and we remanded to

allow Eagle to file an amended complaint

addressing the new Act. Khodara I, 237

F.3d at 195, 198. 

On remand, Eagle filed an amended

complaint seeking a declaratory judgment

to the effect that Section 503(b) of the

Wendell Ford Act does not apply to Happy

Landing Landfill because, prior to the

enactment of that Act, which became law

on April 5, 2000, Eagle had commenced

construction and establishment of the

landfill within the meaning of Section

503(b)’s grandfather clause. See 49

U.S.C. § 44718(d)(2). In the alternative,

Eagle sought a declaration that it was

entitled to an exemption under 49 U.S.C. §

44718(d)(1) because the operation of

Happy Landing Landfill would not have an

adverse impact on aviation safety. Eagle

also sought declarations that the Act was

unconstitutional in various respects.

Eagle, the FAA, and the other defendants

all moved for summary judgment. All of

the defendants argued that the Act

prohibited the development of Happy

Landing Landfill, and the FAA also argued

that Eagle’s Wendell Ford Act claims were

barred for lack of standing and ripeness. 

The District Court granted summary

judgment for the defendants. On Eagle’s

claim that it fell within the grandfather

clause in 49 U.S.C. § 44718(d)(2), the

Court rejected the FAA’s standing and

ripeness arguments but concluded that

Eagle had not commenced the construction

or establishment of the landfill prior to the

enactment of the Wendell Ford Act. On

Eagle’s claim that it was exempt because

the landfill would not adversely affect

aviation safety, the Court held that the

claim was not ripe and therefore dismissed

it without prejudice. The Court also

granted summary judgment against Eagle

on its constitutional claims. Eagle then

filed this appeal and argues that its actions

at Happy Landing Landfill bring it within

the grandfather clause.1

II.

We begin by considering the FAA’s

argument that Eagle lacks Article III

standing. See Joint Stock Soc’y v. UDV

N. Am., Inc., 266 F.3d 164, 175 (3d Cir.

2001) (“Constitutional standing is a

threshold issue that we should address

before examining issues of prudential

standing and statutory interpretation.”);

Peachlum v. City of York, 333 F.3d 429,

433 (3d Cir. 2003).

“Article III of the Constitution

limits the federal judicial power to ‘Cases’

or ‘Controversies,’ thereby entailing as an

‘irreducible minimum’ that there be (1) an

injury in fact, (2) a causal relationship

1

 Eagle does not seek review

regarding its claim for an exemption

under 49 U.S.C. § 44718(d)(1) or its

constitutional claims.
7

between the injury and the challenged

conduct, and (3) a likelihood that the

injury will be redressed by a favorable

decision.” United Food and Commercial

Workers Union Local 751 v. Brown

Group, Inc., 517 U.S. 544, 551(1996). See

also, e.g., Bennett v. Spear, 520 U.S. 154,

162 (1997); Northeastern Fla. Chapter

Associated Gen. Contractors of Am. v.

Jacksonville, 508 U.S. 656 (1993). These

“requirements ensure that plaintiffs have a

‘personal stake’ or ‘interest’ in the

outcome of the proceedings, ‘sufficient to

warrant . . . [their] invocation of federalcourt jurisdiction and to justify exercise of

the court’s remedial powers on . . .[their]

behalf.’” Joint Stock Soc’y, 266 F.3d at

175 (quoting Wheeler v. Travelers Ins.

Co., 22 F.3d 534, 537-38 (3d Cir. 1994)).

A plaintiff seeking a declaratory

judgment must possess constitutional

standing but need not have suffered “the

full harm expected.” The St. Thomas–St.

John Hotel & Tourism Ass’n v. Virgin

Islands, 218 F.3d 232, 240 (3d Cir. 2000).

In such a case, we have said, a plaintiff has

Article III standing if “there is a

substantial controversy, between parties

having adverse legal interests, of sufficient

immediacy and reality to warrant the

issuance of a declaratory judgment.” Id. 

In the present case, these

requirements are met. There certainly is “a

substantial controversy” between Eagle

and the defendants, and each side has

interests that are adverse to the other.

Eagle wishes to develop the Happy

Landing Landfill and claims that this is

permitted by the Wendell Ford Act,

whereas the defendants take the position

that the Act precludes development of the

landfill. In addition, the dispute is of

“sufficient immediacy and reality to

warrant the issuance of a declaratory

judgment.” Although the FAA has not yet

taken action against Eagle, the FAA’s

position regarding the application of the

Act to the Happy Landing Landfill site is

clear. And while the DEP’s revocation or

suspension of Eagle’s permits presents an

independent obstacle to the development

of the facility, it is apparent that it would

be inordinately expensive and impractical

from a business standpoint for Eagle to

attempt to cure that problem until the

Wendell Ford Act issue is resolved. If it is

settled that the Wendell Ford Act does not

apply, Eagle asserts (and no party

disagrees) that Pennsylvania law would

permit Eagle to try to satisfy the

Pennsylvania DEP by redesigning the

Happy Landing Landfill facility, and Eagle

intends to pursue this course if it is

successful in this case. It is also

noteworthy that no party has suggested

that there is any way in which Eagle could

have attacked both of the obstacles that it

faces in a single proceeding. Under these

particular circumstances, we believe that

the standing requirements for a declaratory

judgment case are met. 

In arguing that Eagle’s claim does

not meet Article III requirements, the FAA

focuses on the second and third prongs of

the generally applicable test for

constitutional standing, i.e., causation and

redressability. The FAA begins by
8

identifying Eagle’s injury as “the

prohibition of its proposed landfill” and

concedes that this injury “likely would

satisfy the injury-fact-requirement,” but

the FAA maintains that “[t]he Wendell

Ford Act’s prohibition is not the direct

cause of Eagle’s inability to construct and

operate the landfill.” FAA’s Br. at 13-14.

“Rather,” the FAA writes, “the DEP’s

decision to revoke a portion of Eagle’s

water obstruction and encroachment

permit and suspend its remaining permits

prevents Eagle from constructing the

landfill and does so regardless of whether

the Wendell Ford Act applies.” Id. at 14.

Similarly, the FAA maintains that “it is

purely speculative whether Eagle’s injury

would be redressed by the declaration that

it seeks” because even if the declaration

were granted, the lack of state permits

would block the development of the

landfill. Id. 

There are two ways in which this

argument can be answered. First, under

the circumstances present here, where

Eagle faces two, independent regulatory

obstacles that can only be attacked in

separate proceedings, it makes sense to

conceptualize Eagle’s injury, not as “the

prohibition of its proposed landfill” in the

general sense, but as the prohibition of its

landfill by the challenged application of

the Wendell Ford Act. Cf. Northeastern

Fla. Chapter Associated Gen. Contractors

of Am. v. Jacksonville, 508 U.S. at 664-66

(injury in fact under the circumstances is

not the ultimate denial of contract but the

inability to compete on equal terms).

When Eagle’s injury is understood in this

way, both the causation and redressability

prongs are plainly satisfied. 

Second, even if Eagle’s injury is

defined more narrowly as its inability to

operate the landfill, the FAA’s argument

hinges on the proposition that the

“causation” prong of the test for

constitutional standing demands that the

challenged conduct be a but-for cause of

the plaintiff’s injury. This proposition,

however, is doubtful. Article III standing

demands “a causal relationship,” but

neither the Supreme Court nor our Court

has ever held that but-for causation is

always needed. Moreover, it is well

recognized that but-for causation is

problematic in precisely the situation

present here, i.e., where an effect is

“causally over-determined,” i.e., where

there are multiple sufficient causes. Price

Waterhouse v. Hopkins, 490 U.S. 228, 241

(1989) (opinion of Brennan, J.). See W.

Page Keeton et al., Prosser and Keeton on

the Law of Torts § 41 at 266-67 (5th ed.

1984); Richard W. Wright, Causation in

Tort Law, 73 CAL. L. REV. 1735, 1775-76

(1985). A classic example in tort law is

the hypothetical case in which a person is

simultaneously hit with two lethal gun

shots fired at the same time by two

hunters. But-for causation leads to the

absurd conclusion that neither shot was the

cause of the victim’s demise, and

accordingly “[i]f two causes concur to

bring about an event and either one of

them, operating alone would have been

sufficient to cause the identical result,

some other test [i.e., other than but-for

causation] is needed.” Prosser and Keeton
9

on the Law of Torts, supra, § 41 at 266.

The FAA’s argument in this case

resembles the argument that neither of the

hunters in the hypothetical mentioned

above was the cause of the victim’s death.

The FAA’s argument leads logically to the

conclusion that any litigation commenced

by Eagle to remove either of the two

obstacles that prevent it from developing

the Happy Landing Landfill site – the

application of the Wendell Ford Act and

the lack of permits – would fail Article III

standards. Suppose, for example, that

Eagle redesigned its facility but was

unsuccessful in obtaining the needed state

permits and then sought judicial review in

the Pennsylvania courts. If those courts

adhered to the same standing requirements

that the FAA argues apply in federal court,

the very same argument that the FAA now

advances could be made with respect to

Eagle’s state-court litigation. It could be

argued that “[the denial of the state

permits] is not the direct cause of Eagle’s

inability to construct and operate the

landfill. Rather, the [application of the

Wendell Ford Act] prevents Eagle from

constructing the landfill and does so

regardless of whether the [the permits are

granted].” FAA’s Br. at 14. Likewise, it

could be argued that “it is purely

speculative whether Eagle’s injury would

be redressed by the [a state-court decision

that it is entitled to the permits]” because

even if such a decision were issued, the

Wendell Ford Act would block the

development of the landfill. Id. In short,

under the logic of the FAA’s argument,

any attempt by Eagle to attack either one

of the obstacles that it faces would run

afoul of the case-or-controversy

requirement.

In our view, however, Article III

does not dictate such an absurd result.

Under the particular circumstances here,

where Eagle faces two, independent

obstacles that are potentially removable

but that cannot be challenged in a single

litigation, we believe that Article III allows

Eagle to challenge each obstacle

separately. 

The FAA contends, however, that

Article III demands that Eagle address its

state-law problems before litigating the

federal-law issues presented in this case,

but the FAA provides no convincing

explanation for its view. The FAA does

not argue that the supremacy of federal

over state law demands that state-law

obstacles be removed first, and we see no

basis for such an argument. Nor does the

FAA contend that it is more efficient in

this case for the state issues to be tackled

first – and, if anything, the opposite seems

to be the case. Rather, the FAA’s only

explanation for its position that Eagle must

resolve the state issues first is that “the

permitting process is logically prior to the

construction and operation of a landfill.”

FAA’s Br. at 16. The meaning of this

statement is not clear, but if the FAA is

arguing that the question whether Eagle is

entitled to permits under state law “is

logically prior” to the question whether the

Wendell Ford Act prohibits the

development of the Happy Landing

Landfill facility, we do not follow the
10

FAA’s logic. It does not seem to us that

logic assigns priority to either the federal

or state issues. 

In sum, under the particular factual

circumstances of this case, Eagle has

Article III standing. 

III.

The FAA also argues that Eagle’s

claim is unripe because Eagle “has not

shown that it will be able to obtain state

permits to construct the proposed landfill,”

“has never sought a formal determination

from the FAA that [the Wendell Ford] Act

prohibits its landfill,” and has not

requested the state aviation agency to

petition the FAA under 49 U.S.C. §

44718(d)(1) for an exemption for the

Happy Landing Landfill facility. FAA’s

Br. at 16, 19. 

The ripeness doctrine serves to

“determine whether a party has brought an

action prematurely and counsels abstention

until such time as a dispute is sufficiently

concrete to satisfy the constitutional and

prudential requirements of the doctrine.”

Peachlum v. City of York, 333 F.3d 429,

433 (3d Cir. 2003) (citing Philadelphia

Federation of Teachers, Am. Fed’n of

Teachers, Local 3, AFL-CIO v. Ridge, 150

F.3d 319, 323 (3d Cir. 1998) and Abbott

Labs. v. Gardner, 387 U.S. 136, 148-49

(1967), overruled on other grounds,

Califano v. Sanders, 430 U.S. 99, 105

(1977)). Various considerations “underpin

the ripeness doctrine,” including whether

the parties are in a “sufficiently adversarial

posture to be able to present their positions

vigorously,” whether the facts of the case

are “sufficiently developed to provide the

court with enough information on which to

decide the matter conclusively,” and

whether a party is “genuinely aggrieved so

as to avoid expenditure of judicial

resources on matters which have caused

harm to no one.” Peachlum, 333 F.3d at

433-34. In determining whether a case is

ripe, we generally examine: “(1) ‘the

fitness of the issues for judicial decision,’

and (2) ‘the hardship to the parties of

withholding court consideration.’” Id. at

434 (citing Abbott Labs., 387 U.S. at 149);

see also Nextel Communications of the

Mid-Atlantic, Inc. v. City of Margate, 305

F.3d 188, 193 (3d Cir. 2002).

In declaratory judgment cases, we

apply a somewhat “refined” test “because

declaratory judgments are typically sought

before a completed injury has occurred.”

Pic-A-State Pa. Inc. v. Reno, 76 F.3d

1294, 1298 (3d Cir. 1996). Thus, when

“determining whether to engage in preenforcement review of a statute in a

declaratory judgment action,” we look to

“(1) the adversity of the parties’ interests,

(2) the conclusiveness of the judgment,

and (3) the utility of the judgment.” PicA-State Pa. Inc. v. Reno, 76 F.3d 1294,

1298 (3d Cir. 1996) (citations omitted);

see also Step-Saver Data Systems, Inc. v.

Wyse Technology, 912 F.2d 643, 646-47

(3d Cir. 1990).

In considering whether Eagle’s

Wendell Ford Act claim is ripe, two

decisions of other courts of appeals are

instructive. In Gary D. Peake Excavating,
11

Inc. v. Town Board of the Town of

Hancock, 93 F.3d 68 (2d Cir. 1996), a

town enacted a local law prohibiting the

operation of dumps. Id. at 70-71. This

local law was enacted after the New York

State Department of Environmental

Conservation (the “DEC”) promulgated

new regulations that required a permit for

construction and demolition (“C & D”)

debris landfills. Id. at 70. Peake, who

owned land in the town and wanted to

operate a C & D debris landfill, and his

company sued the town, claiming that the

local law was unconstitutional. Id. at 71.

The town argued that the plaintiffs’ claim

was not ripe because they were not using

the property for a debris landfill and

because they could not use the property for

such a facility without first obtaining a

state permit. Id. at 72. The Second Circuit

disagreed. Id. Observing that “[t]he issues

presented by the Plaintiffs’ claims are fit

for judicial review because they are purely

legal and may be decided without further

factual development,” the Court continued:

Moreover, the Plaintiffs

would suffer substantial

hardship if judicial review

were withheld. Peake

a l ready has spen t

“considerable sums” of

money in an effort to obtain

a permit from the DEC to

operate a C&D landfill. He

claims that he is “reluctant

to spend more money to

obtain the ad ditiona l

information required by [the

DEC] because, even if a

permit were granted, Local

Law No. 1 would still

preve n t [him] fro m

operating [his] disposal

facility.” Reviewing the

ordinance at this time will

allow Peake to make an

informed decision as to

whether he should expend

additional money to obtain a

DEC permit to operate a

C&D landfill. If we uphold

the ordinance, Peake will be

able to cut his losses by

halting his efforts to obtain

a DEC permit; if we

invalidate the ordinance,

Peake can continue with the

DEC permitting process,

knowing that obtaining the

DEC permit would not be in

vain. In contrast, if judicial

review were withheld until

Peake obtained a DEC

permit, Peake would have to

c h oose b etween (1 )

abandoning his plans to

construct the C&D landfill

in deference to a potentially

unconstitutional ordinance

and (2) exp endin g

"considerable sums" of

money to obtain a DEC

permit and there afte r

commencing an action

challenging the ordinance.

We see no reason why

Peake should have to

expend substantial sums of

money before challenging
12

the constitutionality of the

ordinance. Nor should

Peake be required to subject

himself to the threat of the

criminal penalties imposed

by Law No. 1 in order to

challenge the ordinance.

Id. 

The case of Triple G Landfills, Inc.

v. Board of Commissioners of Fountain

County, 977 F.3d 287 (7th Cir. 1992), is

also closely on point. There, Triple G

wanted to build a landfill in Fountain

County, Indiana, but county residents

objected, and eventually the county

adopted an ordinance that obligated a party

wishing to construct a landfill to obtain a

county permit in addition to the stateissued permit that was already required.

Id. at 288. The stringent requirements of

the new county ordinance effectively

barred Triple G from constructing its

landfill, and Triple G brought suit,

challenging the constitutionality of the

ordinance. 

Before reaching the merits of the

case, the Seventh Circuit held that Triple

G’s claims were ripe even though Triple G

had not yet applied for either a state or a

county permit. Triple G Landfills, Inc.,

977 F.3d at 288-90. The Court began by

stating that “[i]nquiries into ripeness

generally address two factors: first,

whether the relevant issues are sufficiently

focused so as to permit judicial resolution

without further factual development; and,

second, whether the parties would suffer

any hardship by the postponement of

judicial action.” Id. at 289. The Court

concluded that the first factor weighed

heavily in favor of a finding of ripeness

because the issues presented were “purely

legal.” Id. The Court then detailed why

delay would “work a substantial hardship

to Triple G.” Id. “Postponing judicial

action,” the Court wrote, “would force an

unwarranted dilemma upon Triple G.” Id.

at 290. It would be required either to

“scuttle its development plans altogether in

deference to a potentially invalid county

regulation, or complete the expensive and

time-consuming state permit process,

submit a permit application that Fountain

County is certain to reject, and then, after

incurring substantial sunk costs, bring a

facial challenge to the ordinance.” Id.

The Court concluded that this dilemma

was unwarranted because delay would

result in no “countervailing benefit–either

to the judicial process or the public

interest.” Id. Even though there was a

chance that the state would “turn down

Triple G’s permit application,” the Court

held, this was not “sufficient to defeat

ripeness.” Id.

We are persuaded by the analysis of

the Second and Seventh Circuits in these

cases, and for similar reasons, we hold that

Eagle’s claim is ripe. Looking to the

factors enumerated in Pic-a-State Pa. Inc.,

76 F.3d at 1298, we note, first, that “the

adversity of the parties’ interests” is

evident and is not disputed by the FAA.

Second, it is apparent that a judgment in

this case will conclusively establish

whether Happy Landing Landfill falls
13

within the Wendell Ford Act’s grandfather

clause. Third, a judgment on the merits

will have significant practical value for

Eagle. Eagle will then be in a position to

know whether it should undertake the

expensive project of redesigning the site

plan and trying once again to obtain state

permits.

In addition to these factors, we note

that here, as in Gary D. Peake Excavating,

Inc. and Triple G, delay will not lead to

further development of relevant facts. The

facts that are pertinent to the question of

the application of the grandfather clause –

regarding what Eagle did on the Happy

Landing Landfill site prior to the critical

date – are simple and undisputed. The crux

of the issue on the merits – i.e., what the

grandfather clause means by the

“commence[ment]” of “the construction

or establishment” of a landfill (49 U.S.C.

§ 44718(d)(2)) – is purely legal. We will

not be in any better position to answer this

question in the future than we are now.

Nor do we see any other advantage in

delay. Although the FAA argues that

Eagle should be required to ask the FAA

for a formal determination regarding the

application of the grandfather clause, the

FAA’s position on that issue is perfectly

clear. And as for the FAA’s argument that

Eagle should be required to ask the state

aviation agency to petition the FAA for an

exemption under 49 U.S.C. § 44718(d)(1),

the futility of such a request is evident.

We consequently hold that Eagle’s claim is

ripe. 

IV.

We now consider the merits of

Eagle’s claim that the Happy Landing

Landfill facility falls within the Wendell

Ford Act’s grandfather clause. The

grandfather clause applies, Eagle argues,

because it commenced the “construction”

and “establishment” of the landfill facility

before the enactment of the Wendell Ford

Act. 

A.

The parties’ first point of

disagreement is whether the Wendell Ford

Act’s grandfather clause is ambiguous. 

According to Eagle, the clause is clear and,

as a result, the District Court erred in

looking beyond the statutory language and

in relying on the FAA Advisory Circular.

When interpreting a statute, we

begin with the statutory language itself,

and “[i]t is well established that ‘when the

statute’s language is plain, the sole

function of the courts – at least where the

disposition required by the text is not

absurd – is to enforce it according to its

terms.” Lamie v. U.S. Trustee, 124 S.Ct.

1023, 1030 (2004) (citations omitted). 

Here, we agree with the District

Court that the grandfather clause is

ambiguous. As noted, the clause states

that Section 503(b) of the Wendell Ford

Act, 49 U.S.C. § 44718(d)(1), does not

apply to the “construction, establishment,

expansion, or modification of, or to any

other activity undertaken with respect to, a

municipal solid waste landfill, if the
14

construction or establishment of the

landfill was commenced on or before the

date of enactment” of the Act. 49 U.S.C.

§ 44718(d)(2) (emphasis added). Since the

word “commenced” modifies both

“construction” and “establishment,” we

must ascertain what Congress meant by

commencing constr uction a n d

commencing establishment.

Eagle’s argument that this language

is clear has surface appeal because the

relevant terms – “commenced,”

“construction,” and “establishment” – are

common and, in many contexts, their

meaning is entirely plain. As used in the

grandfather clause, however, the meaning

of these terms is ambiguous. 

In ordinary speech, “to commence”

means “to enter upon,” to “begin,” to

“start,” or “to initiate formally by

performing the first act of.” Webster’s

Third New International Dictionary 456

(1971). “Establishment” may mean,

among other things, “the act of bringing

into existence, creating, founding,

originating or setting up so that a certain

continuance is assured” or “with

permanence in view.” Id. at 778. And

“construction” means “the act of putting

parts together to form a complete

integrated object” or “fabrication.” Id. at

489. 

Unfortunately, these definitions are

not sufficiently precise to pin down at

exactly what point in the process of

bringing a landfill into existence the

grandfather clause takes effect. As the

District Court noted and as the record

bears out, that process is often complex

and lengthy, requiring the acquisition of

land, the satisfaction of legal requirements,

many different stages of work on the site,

the solicitation of business, and the

beginning of actual operations. One could

plausibly contend that the commencement

of the establishment of a landfill takes

place very early in this process. Along

these lines, it could be argued that a party

“start[s]” “the act of bringing [a landfill]

into existence” “with permanence in view”

when it takes the very first step of the

process that it intends to bring about that

result. Thus, if a party buys land for use as

a landfill, that could be viewed as the

commencement of the establishment of the

landfill. At the other extreme, however,

one could plausibly argue that the

commencement of the establishment of a

landfill does not occur until the point at

which “a certain continuance is assured,”

and this might not be viewed as occurring

until after the last legal obstacle is

surmounted or, perhaps, until commercial

operation actually begins. Because the

statutory language referring to the

“commence[ment” of the “establishment”

of a landfill can comfortably accommodate

these widely divergent interpretations, it is

not unambiguous. 

Although “construction” is a more

concrete concept than “establishment,” the

stat utory r efere nce to th e

“commence[ment]” of the “construction”

of a landfill is also unclear. On the one

hand, doing any physical work on the site

could be viewed as a step in the “the act of
15

putting parts together to form a complete

integrated object,” i.e., the landfill. On the

other hand, “construction” might be

narrowly construed to mean the erection of

a structure of some sort on the site.

For these reasons, we agree with the

District Court that the statutory language is

ambiguous.

B.

Because the statutory language is

ambiguous, we must consider whether to

defer to the interpretation in FAA

Advisory Circular 150/5200-34, which

defines “constr uction” an d

“establishment.” The District Court gave

the Circular the measure of deference

prescribed by Skidmore v. Swift & Co.,

323 U.S. 134 (1944), but the FAA argues

that the Circular actually merits the

stronger form of deference called for by

Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837

(1984). The FAA makes this argument

even though “interpretations contained in

policy statements, agency manuals, and

enforcement guidelines” generally do not

fall within Chevron. Christensen v. Harris

County, 529 U.S. 576, 587 (2000); see also

Alaska Dep’t of Envtl. Conservation v.

EPA, 124 S.Ct. 983, 1001 (2004) (agency

interpretation in “internal guidance

memoranda” not entitled to Chevron

deference). We find it unnecessary to

decide this question, because even if we

accept the Circular’s definitions of the key

statutory terms, the Happy Landing

Landfill facility falls within the

grandfather clause. Thus, we will assume

for the sake of argument that the

definitions in the Circular accurately

capture the statutory meaning. 

C.

Eagle argues that it commenced the

“construction” of the Happy Landing

Landfill before the Wendell Ford Act

became law on April 5, 2000. The FAA

Circular, as previously noted, defines

“construction” as follows:

a. Construct a municipal

solid waste landfill means

excavate or grade land, or

raise structures, to prepare a

municipal solid waste

landfill as permitted by the

appropriate regulatory or

permitting authority.

In arguing that its activities at

Happy Landing Landfill prior to April 5,

2000, fall within this definition, Eagle

notes in particular that it completed the

installation of 12 groundwater monitoring

wells in June 1996 at a cost of nearly

$35,000 and that the process of installing

such wells generally requires digging and

the placement underground of inner and

outer well casings, gravel, screens, sealing

material, and pumps or bailers. Eagle also

points out that the state permit that

mandated the installation of these wells

described this process as “major

construction activity.” Appellant’s Br. at

17, 19. Eagle contends that the installation

of the wells involved both the
16

“excavat[ion]” of land and the “rais[ing]”

of “structure[s].” Id. at 15-22. 

We will analyze this argument in

two parts. First, we will consider whether

Eagle’s installation of the groundwater

monitori n g we lls cons tit u t e d

“construction” under the definition in the

FAA circular. Second, we will address the

question whether the revocation of Eagle’s

permit prior to April 5, 2000, affects the

applicability of the grandfather clause.

Turning to the first of these

questions, we conclude that the installation

of the wells comes easily within the

Circular’s definition. In order to install the

wells, Eagle “excavate[d],” i.e., dug out,

land. See Webster’s Third New

International Dictionary 791 (1971)

(defining “excavate” as “to hollow out:

form a cavity or hole in,” “to dig out and

remove (as earth or mineral matter)”). In

addition, Eagle also installed an access

road and a silt perimeter fence, and these

activities also involved excavation.

Moreover, all of these activities were

done, in the words of the Circular, “to

prepare a municipal solid waste landfill.”

It also seems likely that the

installation of the wells amounted to the

“rais[ing]” of “structures.” That the wells

qualify as “structures” seems obvious, see

Webster’s Third New International

Dictionary 2267 (1971) (defining a

“structure” as “something constructed or

built”), and while it is somewhat awkward

to speak of the “raising” of an

underground structure, such usage falls

within the broad definition of the term

“raise.” See id. at 1877 (defining “raise”

to mean, among other things, “construct”).

This interpretation is plausible in the

present context since most construction at

a landfill site is underground, and there are

other situations (for example, building a

subway) in which it is natural to speak of

underground construction. We note that

the FAA has not argued that the reference

in its Circular to the “rais[ing]” of

structures is limited to above-ground

construction. In any event, because

Eagle’s activities involved “excavation”

and because this is sufficient to invoke the

grandfather clause, we need not decide

whether Eagle also “raise[d]” structures.

The FAA argues that Eagle’s

installation of the groundwater monitoring

wells was not “construction” but

“preconstruction” activity “undertaken to

determine the viability of the site, in

anticipation of the construction of the

landfill, but not as part of its construction.”

FAA’s Br. at 26. As noted, however, the

Circular refers to excavation done “to

prepare” a landfill. Installation of wells

for the purpose of establishing to the

satisfaction of state regulators that a site is

suitable falls within the scope of

“prepar[ation].” 

The FAA notes that our prior

opinion in this case characterized the

installation of the wells as “preconstruction,” see Khodara Envtl., Inc.,

237 F.3d at 188 (“After obtaining these

permits, Eagle began pre-construction by

conducting engineering surveys and
17

installing monitoring wells.”), but this

language is of little significance for

present purposes. We used the term “preconstruction” in passing and without

reference to the grandfather clause. At

issue here is not the meaning of

“construction” in ordinary parlance but the

definition that the FAA placed in its

Circular. Our casual reference to “preconstruction” is no more controlling on

that issue than the description of the

installation of the wells in Eagle’s permit

as “major construction activity.”2

Jefferson County and Pine Creek

Township make the interesting argument

that the Happy Landing Landfill facility

cannot fall within the grandfather clause

because Congress adopted the statutory

provision at issue for the very purpose of

blocking Happy Landing Landfill. It is a

sufficient response to this argument to

observe that – as all the defendants have

strenuously advocated – we are applying

the definition of “construction” that was

adopted by the FAA in its Circular. If

Jefferson County and Pine Creek

Township feel that the FAA’s definition

does not comport with Congress’s

objective, they should not have urged us to

defer to that definition. Jefferson County

and Pine Creek Township contend that the

operation of the Happy Landing Landfill

will pose a threat to aircraft using the local

airport, but we must presume that the

interpretation of the grandfather clause

adopted by the FAA, the agency with

expertise in the field, takes aviation safety

fully into account. 

We therefore turn to the second

question noted above, i.e., whether the

revocation of Eagle’s permit prior to April

5, 2000, affects the applicability of the

grandfather clause. The District Court

answered this question in the affirmative

and wrote:

We think that implicit in the

A d vis ory Circu lar’s

definition of “construct[ion]

of a municipal solid waste

landfill” is a temporality

requirement: i.e., the landfill

must have been under

construction and permitted

b y the appropriat e

regulatory or permitting

authority” as of April 5,

2000. This requirement

Eagle did not meet, as its

Solid Waste Permit was still

under suspension in April of

2000.

2At oral argument, counsel for the

FAA agreed that the statement in

Khodara I does not bind us in any way. 

The FAA contends, however, that the

Wendell Ford Act’s grandfather clause

was intended to distinguish between true

“construction,” which is freighted with

developer and community expectations,

and “preconstruction” activity, which is

not. We acknowledge that this

distinction may make sense as a matter of

policy, but neither the Act itself nor the

FAA’s interpretation in the circular gives

effect to such a policy.
18

App. 51a-52a (emphasis in original).

In a similar vein, the FAA argues

that because “no construction was

‘permitted by the appropriate regulatory or

permitting authority’ as of the effective

date of the statute,” Eagle does not fall

within the exception as interpreted by the

FAA. FAA’s Br. at 26 (emphasis added).

This argument overlooks the fact that the

grandfather clause speaks of the

“commence[ment]” of construction “on or

before” the date of the enactment of the

Wendell Ford Act, 49 U.S.C. § 4717(d)

(emphasis added), not “as of” that date.

Accordingly, “construction,” as defined in

the FAA Circular, must hav e

“commence[d]” “on or before” April 5,

2000. This means that “on or before” that

date, Eagle must have begun to “excavate

. . . land . . . to prepare a municipal solid

waste landfill as permitted by the

appropriate regulatory or permitting

authority.” In other words, the excavation

must have been “permitted by the

appropriate regulatory or permitting

authority” on the date of commencement,

and this date must have been “on or before

April 5, 2000.” This reading includes “a

temporality requirement,” but not the one

identified by the District Court.3 

In sum, we hold that Eagle

commenced construction of the Happy

Landing Landfill within the meaning of

the FAA Circular prior to the effective

date of the Wendell Ford Act.

VI.

3

 The District Court stated that

without its “temporality requirement,”

the grandfather clause could produce the

following “absurd result”: “a landfill –

once permitted remotely in time – would

reap the benefit of § 503(d)(2)’s [§

503(b)’s] exception indefinitely.” App.

46. In light of the narrow scope of

Section 503(b), however, it may well be

that this situation will never arise. It

should be kept in mind that, prior to the

adoption of FARA and § 503(b), the

FAA generally prohibited the location of

a landfill within five miles of an airport. 

See Khodara I, 237 F.3d at 189 n.3. 

Thus, in order to fall within the District

Court’s hypothetical all of the following

conditions would have to be met: (1) the

landfill site would have to be located

between five and six miles from an

airport; (2) the airport would have to

have received a federal grant of the type

specified in Section 503(b); (3) the

airport would have to be one that is

“primarily served by general aviation

aircraft and regularly scheduled flights of

aircraft designed for 60 passengers or

less; (4) the construction or

establishment of the landfill would have

to have commence pursuant to state

authorization prior to April 5, 2000; and

(5) completion of the landfill, for some

reason, would have to be delayed

“indefinitely.” App. 52a. The class of

landfills satisfying all of these conditions

is almost certainly very small and may

well be nonexistent. 
19

For the reasons set out above, we

reverse the order of the District Court

granting summary judgment for the

defendants and remand for the entry of

summary judgment in favor of the plaintiff

and for the issuance of a declaratory

judgment that the Happy Landfill falls

within the grandfather clause of the

Wendell Ford Act.