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Home My WebLink AboutCOM 1142.001 2006-2008 Harry Kim Lincoln S.T. Ashida Mayor ' Corporation Course! Gerald Takase Assistant Corporation Qw Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, SuAe 325 • Hilo, Hawaii 96720.4262 • (808) 961-8251 • Fax (808) 961-8622 April 21, 2008 PRIMEGED AND CONFIDENTIAL COMMUNICATION ATTORNEY-CLIENT COMMUNICATION NOT A PUBLIC RECORD Honorable Dominic Yagong Councilmember Hawaii County Council 333 Kilauea Avenue, 2"d Floor Ben Franklin Building Hilo, HI 96720 Be: Vise United States Air Force Proposal to Conduct G17 Training Over the Island of HawaN Ourfile WAK 08-0800 Dear Mr. Yagong: This letter is in response to your letter dated April 9, 2008, requesting an opinion on several issues related to the United States Air Force's ("Air Force') proposal to establish a Military Training Route ("MTR") to conduct C-17 training over the island of Hawaii. ISSUE 1 Can the Hawaii County Council Council's pass ordinances regulating altitude or flight patterns of aircraft? SHORT ANSWER No. The federal government has the exclusive responsibility and authority to regulate altitude and flight patterns. ISSUE 2 What authority does the Council have over the regulation of aircraft operations above the County? Gomm. Na Z • Ref. Toi' esanfedl'_ IFL, Ref. Date 'APR 9.1 ?FINK Hawaii County is an Equal Opportunity Provider and Employer Councilmember Dominic Yagong Hawaii County Council April 21, 2008 Page 2 SHORT ANSWER The Council may have authority over certain limited aspects of aircraft operations in areas in which federal law has not preempted local regulation, such as aerial advertising. ISSUE 3 Can the Council art noise abatement policies? SHORT ANSWER Yes, the Council has the authority to regulate noise so long as such regulation does not directly affect aircraft or flight. ISSUE 4 Who determines whether a proposed action will have a "significant impact" and thus require preparation of an Environmental Impact Statement ("EIS')? SHORT ANSWER The federal agency proposing the action in question determines whether the action will have a "significant impact" and thus require an EIS under the National Environmental Policy Act ("NEPX Because the proposed establishment of a MTR to conduct C-17 training involves both the Air Force and the Federal Aviation Administration ("FAA'), both agencies are responsible for compliance with NEPA. ISSUE 5 If there is a Finding of No significant Impact ("FONSrj, does that in fact "green fight" the proposed activity? SHORT ANSWER It depends. Assuming all other applicable requirements have been met, a FONSI satisfies the requirements under NEPA and clears the way for an agency to implement the proposed activity. ISSUE 6 When all is said and done, who makes the final decision regarding whether or not this proposal moves forward? Councilmember Dominic Yagong Hawaii County Council April 21, 2008 Page 3 SHORT ANSWER Authority to make the final decision regarding whether this proposal moves forward lies with the Air Force and the FAA. However, federal law requires federal agencies to involve state and local government as well as the public in the decision-making process. DISCUSSION 1. Can the Council pass ordinances regulating altitude or flight patterns of aircraft? The Council does nothave the authority to enact ordinances regulating the altitude or flight patterns of aircraft. Altitu&e and flight patterns are areas in which the federal government has exclusive authority and thus, under the doctrine of preemption, any attempt at state or local control would be invalid. The preemption doctrine is rooted in the Supremacy Clause of our Federal Constitution, which provides; "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; ...shall be the Supreme Law of the Land." U.S. ConsL, art. VI, cl. 2. It is well settled that state law that conflicts with federal law is invalid. M'Culloch v. Maryland, 17 U.S. 4 Wheat. 316, 427, 4 L.Ed. 579 (1819). The Supremacy Clause has also been interpreted as preempting state or local laws when federal law "so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it" Cipollone v. Liggett Group, Inc. 505 U.S. 504, 516,112 S.Ct. 2608, 2617,120 L.Ed2d 407 (1992) (internal citations omitted). The federal government has exclusive sovereignty over the airspace of the United States. The authority to regulate navigable airspace and prescribe rules governing the flight of aircraft is vested in the Federal Aviation Administration. 49 U.S.C.A. § 40103(a) and (b). Because the federal government exercises pervasive control in this area, courts have consistently invalidated state and local regulations that "reach into the forbidden, exclusively federal areas, such as flight paths, hours, or altitudes." Skysign International, Inc. Y. City and County of Honolulu, 276 F. 3d 1109, 1117 (2002). 2. What authority does the Council have over the regulation of aircraft operations above the County? The Council may have authority over certain limitedaspects of aircraft operations in areas in which federal law has not preempted local regulation. Although aircraft safety, flight paths, hours and altitudes are exclusively federal areas, there is case law that supports the position that not all state and local regulation relating to navigable airspace is preempted. For example, in Skysign, supra, the Ninth Circuit Court of Appeals upheld a City and County of Honolulu ordinance prohibiting the use of aircraft to display any sign or advertising devise. The court reasoned that the ordinance was not preempted by federal law because 1) although it related to navigable airspace, it did not impact a traditionally federal area, such as aircraft safety or flight patterns, 2) federal law in the area of aerial advertising contemplated the coexistence of federal and local regulations, and 3) the ordinance did not conflict with any existing federal law nor stand as "an obstacle to the accomplishment and execution of the full purposes and objectives of federal law." Skysign at 1116-1117 (internal quotations omitted). Councilmember Dominic Yagong Hawaii County Council April 21, 2008 Page 4 Based on Skysign, there may be certain "subfields" within the field of navigable airspace that are not completely preempted by federal regulation. States and their political subdivisions may exercise authority in such areas so long as there is no conflict or interference with federal law or policy. However, this limited authority would not be an effective way to prevent or restrict the proposed C-17 training. 3. Can the Council set noise abatement policies? The Council has the authority to regulate noise so long as such regulation does not directly interfere with aircraft operations. The Supreme Court has held that regulation of aircraft noise is within the exclusive authority of the federal government. City ofBurbank et al., v LocAheed Air Terminal, Inc. 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973). In Burbank a city sought to control aircraft noise by enacting an ordinance that imposed a curfew on flights taking off from the local airport. The Supreme Court invalidated the ordinance on grounds that pervasive federal control over aircraft noise has left no room for local curfews or other local controls. Id. at 638, 93 S.Ct. at 1862. Similar ordinances have consistently been struck down. (See County of Cook v. Preister, 22 Il1.App3d. 964, 970, 318 N.E_2d 327 (1974), prohibiting aircraft over a certain weight American Airline, Inc. v Town of Hempstead, 272 F.Supp. 226, 227 (D.C.N.Y. 1966), prohibiting aircraft which operate above a certain noise level; Harrison v. Schwartz, 319 Md. 360, 368, 572 A.2d 528, 532 (1990), limiting frequency of takeoffs and establishing curfew. On the other hand, noise abatement policies that relate to land use and zoning have been upheld. For example, a city ordinance providing for council review and approval of any plan to construct or expand a public airport was held to be a valid local control. City of Burbank v Burbank-Glendale- Pasadena Airport Authority, 72 Cal.AppAth 366, 85 Ca1.Rptr.2d 28 (1999). The Ninth Circuit Court of Appeals has stated that "while a municipality may not control the source of the noise (the aircraft), it may use its police powers to mitigate the noise, such as the zoning power to assure harmonious development" Id. at 379, 85 Cal.Rptr.2d at 36 (citing to San Diego Unified Port District v Gianturco, 651 F.2d 1306, 1313-1314 (9th.Cir. 1981)). 4. Who determines whether a proposed action will have a "significant impact" and thus require preparation of an EIS? NEPA requires that an EIS be prepared for all "major Federal actions significantly affecting the quality of the human environment" 42 U.S.C.A. § 4332(2)(C). The federal agency proposing the activity determines whether the activity will have significant effects and thus require an EIS. When more than one agency is involved in a proposed activity, the agencies typically work together to meet NEPA requirements. The proposed establishment of a MTR to conduct C-17 training over the Island of Hawaii involves both the Air Force and FAA, which has the authority to designate airspace as an MTR Accordingly, both of these agencies have the duty and the authority to determine whether an EIS is required. Councilmember Dominic Yagong Hawaii County Council April 21, 2008 Page 5 To determine whether or not there will be a significant impact and to identify alternatives, an Environmental Assessment ("EA') is typically prepared. The Air Force's internal regulations for the implementation of NEPA require the involvement of "other federal agencies, state, Tribal, and local governments, and the public in the preparation of EAs". 32 C.F.R. § 989.140). Thus, while the federal agency is ultimately the decision-maker, other stakeholders have the opportunity to provide review and comment. In determining whether there is a significant impact, the degree of controversy over the effects on the quality of the human environment is one of the factors considered. 40 C.F.R. § 1508.27(6)(5). 5. If there is a FONSI, does that in fact "green light" the proposed activity? If there is a FONSI, there are no further requirements under NEPA and it is likely that the project would, legally speaking, be "green-lighted" However, it is possible that other laws might impose requirements that would still need to be meL This is a question that can be looked at further when more details of the proposal are known. 6. When all is said and done, who makes the final decision regarding whether or not this proposal moves forward? Authority to make the final decision of whether this proposal moves forward lies with the Air Force and the FAA. In reaching this decision, NEPA require agencies to consider the environmental effects, including impacts on social, cultural, and economic resources, and also to involve state and local government and the public in the decision-making process. CONCLUSION Federal law preempts the Council from enacting any type of ordinance that would restrict or prevent the proposed C-17 training. Amore effective means of challenging the proposed activity would be through political pressure, active participation in the NEPA process, and public protest. Thank you for seeking our assistance in this matter. If you have any questions or concerns regarding the content of this letter, please feel free to contact me. Sincerely, MOLLY A. LUGO Deputy Corporation Counsel MAL:kd c: s/dopVcau=iVwrk 08-0800/041M to= C17 training MAUod