MR. DVORETZKY: Good morning. May it please the court, Shay Dvoretzky for Alaska Air Group. I’d like to reserve two minutes for rebuttal. With me is Mr. Tayrani for Delta. The Port is joining our arguments. David Peters is also here for the United States. I’m happy to answer questions the court may have about any preemption issue, but I plan to focus today on the Clean Air Act and on impossibility preemption. Mr. Tayrani will focus on the ADA and the other implied preemption arguments, and Mr. Peters will address the federal interest at stake.
Turning to the Clean Air Act, Section 233 preempts any state-law standard respecting emissions of any air pollutant from any aircraft or engine unless that standard is identical to the federal standard. Plaintiffs’ claims meet every element of the statutory preemption test. The claims seek to assert a standard because, under the Supreme Court’s decisions in Ginsberg and CSX, rules supposedly required by state common law count as standards for purposes of express preemption provisions. That standard here respects emissions of air pollutants because plaintiffs claimed that the airlines violated Washington law when their planes emitted pollution while flying into and out of Sea-Tac, which then built up to harmful levels on their property.
JUDGE PAEZ: Let me ask you — I read the plaintiffs’ complaint a couple of times, maybe not every word every time; it’s a pretty long complaint, and it tells a story. Do you read the complaint as challenging emissions from the exhaust of the airplanes, or is it just about cleanup — what’s on the ground? Does it encompass both, or is it focused on one or the other?
MR. DVORETZKY: I think the way to read it — and remember, we’re supposed to read it in the light most favorable to the plaintiffs — is that the cleanup is the consequence of what they believe to be unlawful emissions. The cleanup is the remedy that state law provides for contamination that they claim comes from the emissions that result from our flying federally regulated planes and engines on federally regulated flight paths over their homes. The reason that’s preempted under the Clean Air Act is that it’s a standard that respects emissions. The emissions are the basis for the contamination they say needs to be cleaned up. It’s a standard that respects emissions under the plain language of the statute — of any air pollutant from an aircraft or engine.
JUDGE PAEZ: So any pollutant that might come from the exhaust of an engine that ends up on the ground for whatever reason — the fact that it’s on the ground still means it’s covered by the Clean Air Act?
MR. DVORETZKY: Yes, because it’s an emission from the engine or the airplane — again, looking at the text of the statute.
JUDGE PAEZ: So Washington is, of course, trying to invoke this remedial measure to abate the pollution, but you’re saying it doesn’t matter, because the preemption really arises with the emission?
MR. DVORETZKY: Yes. First, as a matter of statutory text, the preemption arises from the emission. Second, it’s not possible to separate the remedy from the unlawful conduct that justifies the remedy as a matter of ordinary state-court law. The only reason the airlines could be ordered — or the court could be ordered — to pay cleanup costs or to establish a medical-monitoring fund is if it’s determined that they violated the law by causing the pollution in the first place. So, to Judge Paez’s question, you can’t separate the two. The only reason you potentially have the cleanup cost or the medical-monitoring fund is because of an unlawful emission. The state standards regarding emissions from aircraft or engines are preempted under the Clean Air Act unless they’re identical to a federal standard.
JUDGE PAEZ: One of the things they also talk about is releases of metal from the fuselage of the airplanes — the flaking. How does that fit in with the Clean Air Act?
MR. DVORETZKY: That’s also covered by the plain language of the Clean Air Act. Go back to the statute: it’s distinguishing between emissions from an aircraft or an engine. So it’s not just gases from the engine — it’s also emissions from the aircraft itself, implying that pollutants can be emitted from the plane. In addition, when we look at the definition of “air pollutant” in the statute — 42 U.S.C. § 7602(g) — it’s quite broad. It’s any air pollution agent or matter which is emitted into or otherwise enters the ambient air.
JUDGE PAEZ: What about debris from the fuselage of the plane — is that different from exhaust?
MR. DVORETZKY: I think we’re looking at “agent or matter” — again, very broad language. If you had a situation where an entire wing fell off a plane, you wouldn’t ordinarily think of that as a pollutant. That probably wouldn’t be covered.
JUDGE PAEZ: Presumably not — but that’s not what they’re talking about here. They’re not talking about a wing or luggage flying off and landing on the ground.
MR. DVORETZKY: Right. They’re talking about very fine particulate matter. Whether that comes from the engine or from the aircraft itself, it’s covered under the plain language of the Clean Air Act.
JUDGE PAEZ: And that’s the way you understand the allegations in the complaint?
MR. DVORETZKY: Correct. They list a host of contaminants in the complaint.
JUDGE PAEZ: Sure.
MR. DVORETZKY: They’re all different kinds of air pollutants under that broad definition.
If the court has no other questions on the Clean Air Act — and watching my clock — I’d briefly turn to impossibility preemption, which I also think is a straightforward way to resolve this case. State law is preempted when it’s impossible for a private party to comply with both state and federal requirements absent special accommodation from the federal government. Here, there are three things the airlines or the Port could do to avoid state-law liability. One, modify their aircraft to reduce emissions — can’t do that without permission from the federal government. Two, alter their flight path so they’re not flying over plaintiffs’ homes — can’t do that without permission from the federal government. Three, stop service —
JUDGE PAEZ: In the brief — but if you read their complaint, remember this is on a 12(b)(6) motion, so we look at the allegations in the complaint, right?
MR. DVORETZKY: Right.
JUDGE PAEZ: And that might be a remedy. We don’t know that until we get to the end of the case.
MR. DVORETZKY: I think we do know that from the complaint, because the only thing they’re asking for is: go ahead, fly your federally regulated routes, keep the routes, keep the planes — but pay us damages. That goes back to our earlier colloquy.
JUDGE PAEZ: That’s a different point.
MR. DVORETZKY: No, I think it comes back to the same point. The only way to understand their complaint is that they’re seeking money for a violation of state law. If you’re violating state law, you’re not, by definition, simultaneously complying with both state and federal law. And the Supreme Court made clear in cases like PLIVA and Bartlett that a defendant doesn’t have to cease operating in a market entirely to avoid preemption, and second, that impossibility preemption would be a dead letter if the answer to any preemption question were just “pay damages” — because at that point you’re not complying with both state and federal law. You’re violating state law and paying for it.
JUDGE PAEZ: Let me ask — do you understand the complaint to be alleging negligence in the initial pollution, like the exhaust, or just negligence in the cleanup?
MR. DVORETZKY: I think the only way to understand it is in the initial exhaust. Let me give an analogy. If I punch my neighbor and refuse to pay his medical expenses, you wouldn’t say the thing I did wrong is not paying the medical expenses. The only reason I’m obligated to pay is because I committed a battery in the first place — that’s what triggered the need for medical expenses. As a matter of state tort law, that’s the only way to understand what the alleged unlawful conduct is here. If the unlawful conduct they allege is emissions from the plane tied to flight paths, that’s preempted for all the reasons explained in the brief, some of which I’ve discussed today.
I’m happy to answer any other questions, but I want to be mindful of my rebuttal time.
THE COURT: Okay, we’ll put two minutes on the clock for you. Thank you, Mr. Dvoretzky.
THE COURT: Mr. Tayrani. Good morning.
MR. TAYRANI: Good morning, your honors, and may it please the court. Amir Tayrani for Delta Airlines. In addition to being barred by the Clean Air Act’s preemption provision and by conflict preemption, the plaintiffs’ complaint is also barred by the broad language of the ADA’s express preemption provision, by the FAA’s exclusive control over airspace management, and by the EPA and FAA’s exclusive control over aviation emissions.
The Supreme Court has described the ADA’s express preemption provision as “deliberately expansive” and “conspicuous for its breadth.” It bars any state-law claim that relates to a price, route, or service of an air carrier. That’s precisely what these claims relate to — service. They’re a direct attack on the airlines’ decisions to fly into and out of Sea-Tac and the frequency of those flights.
JUDGE PAEZ: You have to read the complaint — that’s where we’re at. The district court denied the motion to dismiss on 12(b)(6) grounds, so what’s critical here is what’s alleged in the complaint.
MR. TAYRANI: That’s exactly right, your honor. The complaint mentions the defendants’ flights and their routes in and out of Sea-Tac more than fifteen times. It alleges the contamination is “the direct result” of the flights into and out of Sea-Tac, that it’s caused by those flights, that it’s created by those flights, and that it’s closely associated with the defendants’ flight paths. So this is a direct challenge to the routes the airlines are flying into and out of Sea-Tac.
JUDGE PAEZ: So one way you could read this complaint is that what they’re really complaining about is the failure to clean up.
MR. TAYRANI: It’s impossible to divorce the alleged failure to clean up from the flights and flight paths that, in the words of the complaint, directly result in the emissions the defendants have supposedly failed to clean up. We wouldn’t be standing here today if the plaintiffs didn’t allege they lived under the flight paths. And we wouldn’t be here today if the defendants weren’t required to fly along the federally specified flight path.
JUDGE PAEZ: Not all — as I understand it, a five-mile radius around the airport was what they identified as the area of concern.
MR. TAYRANI: Correct, your honor. The plaintiffs alleged they live within that five-mile radius, under flight paths specified by the FAA. This theory of liability challenges the defendants’ ordinary flight operations. There’s nothing unique about Sea-Tac. There’s nothing unique about the fact that these airplanes have to fly below 3,000 feet when they land and take off. If this theory of liability is permitted to go forward, the defendants would face similar claims at every commercial airport throughout the country. They’d face staggering liability. They’d be making decisions about which markets to serve based not on consumer demand but on the risk of state-law liability. That’s anathema to the deregulatory objectives of the Airline Deregulation Act. It would also create massive disuniformity in an area that requires uniformity. Air travel is inherently interstate and international. There needs to be a uniform set of federal regulations governing airplane emissions. It can’t be the case, to use the words of this court’s decision in Montalvo, that an airplane taking off from Providence, landing in Baltimore, and continuing on to Miami is subject to three different sets of state standards along the way. It can’t be that a Delta flight taking off from Atlanta is subject to one set of emissions standards on takeoff, a different set on landing, and different sets along the path based on whatever state the airplane happens to be passing over. For all of these reasons, these claims are squarely barred by the ADA’s express preemption provision. They relate to airlines’ routes and services. They’re also barred by the FAA’s exclusive control over airspace management. Congress has given the United States government exclusive sovereignty over U.S. airspace.
JUDGE PAEZ: What caught my eye when I read the complaint was all these studies — from the University of Washington and a couple of other places — about the effects of this black dust or black soot, whatever the contaminants are that are in the air. Is there any party or entity that might be responsible for cleaning it up?
MR. TAYRANI: Your honor, we’re talking about the inherent byproducts of ordinary flight operations. The FAA, when it sets flight paths, and the EPA, when it sets emission standards, take these considerations into account. For example, the study your honor referenced, which is mentioned in the complaint, was expressly considered by the EPA in its 2022 order — reproduced in Delta’s addendum — that sets particulate-matter limitations for airplane engines. That’s at addendum 43. The FAA, when it sets flight paths, strikes a careful and delicate balance between safety and efficiency on one side and the protection of persons and property on the ground on the other. The Supreme Court recognized that in City of Burbank v. Lockheed, explaining that in light of this delicate balance, there needs to be a “uniform and exclusive system of federal regulation.”
JUDGE PAEZ: Maybe this is a variation on my earlier question — but in your view, is there any way these plaintiffs, living in this contamination zone, could allege any kind of damages or claim for the impact on their habitat?
MR. TAYRANI: Not from these ordinary flight operations. There’s no allegation in this complaint that the defendants deviated from the federally prescribed flight paths.
JUDGE PAEZ: Could they bring a claim for violation of federal emissions standards, or for deviation from a flight path?
MR. TAYRANI: For example, if the claim were premised on federal law, the plaintiffs could bring a parallel claim seeking to enforce a violation of a federal standard under state law. But this court’s decision in Nacarino v. Kashi makes clear that where a plaintiff seeks to enforce a federal standard through a parallel state-law claim, it needs to allege a violation of federal law in the complaint. When it fails to do so, 12(b)(6) dismissal is appropriate.
JUDGE PAEZ: So there is potential for a claim based on violation of federal emissions law?
MR. TAYRANI: There is potential, but that’s not the claim these plaintiffs brought, your honor. That’s precisely why in Nacarino this court recognized the possibility of a parallel claim to enforce the requirements of the Federal Food, Drug, and Cosmetic Act, but still dismissed the case because the plaintiffs didn’t allege a violation of federal law. That’s precisely the case here. The plaintiffs don’t allege a violation of federal emissions standards. They don’t allege a violation of FAA-specified flight paths. So this complaint is subject to dismissal not only under the ADA, but because it’s an impermissible intrusion on the expert regulatory determinations the FAA made in specifying flight paths and the EPA made in establishing emissions levels for these ordinary flight operations. Again, there’s nothing unique about Sea-Tac or about the defendants’ flights into this airport. If this claim is permitted to move forward, it would risk massive liability for these defendants. It would lead defendants to make decisions about which markets to serve based on the risk of state-law liability rather than the free-market principles enshrined in the ADA. And it would lead to a patchwork of disuniform state-law standards incompatible with the uniformity this court recognized as necessary in Gianturco, and that the Supreme Court recognized as necessary in City of Burbank.
THE COURT: Okay, we’ll put two minutes on the clock for rebuttal. We’ll hear next from Mr. Peters, appearing for the United States.
THE COURT: Mr. Peters, as amicus, I don’t think we’ll have rebuttal time for you, so this is your time.
MR. PETERS: No problem, your honor. Good morning, and may it please the court. David Peters on behalf of the United States of America. Congress has long recognized that aviation management and safety are spheres where the federal interest is dominant and the need for a uniform and exclusive system of federal regulation is paramount. That’s why Congress included in the Clean Air Act and the Airline Deregulation Act broad provisions expressly preempting state standards. And it’s why this court has recognized that even absent such an express preemption provision, preemptive intent is more readily inferred in the context of aviation, given the federal government’s extensive regulation in the area pursuant to the Federal Aviation Act.
JUDGE PAEZ: There are so many different preemption arguments made here. Does the United States have a view on which is the strongest?
MR. PETERS: I’m not sure we have a strong view on which is the easiest way to go about it. The federal government enforces all of these federal standards, and we think they’re all implicated and preempt the state-law claims at issue here.
JUDGE PAEZ: So you don’t have a view on whether we should use express preemption or implied preemption, assuming we were to disagree with the district court?
MR. PETERS: I think the district court erred in several key respects in holding these claims weren’t expressly preempted. I think it’s worth clarifying why. In the ADA context, for example, the district court relied on language about having to “bind” claims, which would suggest common-law claims could never be preempted by the ADA. This court has explained why that’s not right, and I think it’s worth reiterating. But again, we don’t have a strong position on which of the various theories should govern if this court is inclined to rule that these claims are preempted.
JUDGE PAEZ: You may not have thought about this — it relates to the Port. They have an inverse condemnation claim under the Washington state constitution.
MR. PETERS: I’m aware, your honor. We didn’t take a position on that. We participated on a limited basis, addressing our view that these claims are preempted by federal standards. We don’t have a view on the condemnation claim specifically. Our participation isn’t directed at the condemnation claim.
JUDGE PAEZ: But you have no view on whether that claim is preempted?
MR. PETERS: I’m not in a position to take a view on that right now in front of this court.
JUDGE PAEZ: Let me ask you this — I’m sure you carefully read the complaint. How do you read it? Do you think they’re just challenging the cleanup aspects, or are they challenging the emissions?
MR. PETERS: I share the views expressed by my colleagues at the podium. I think there can’t be a standalone remediation claim, because the unlawful conduct being challenged — the conduct of the airlines and the Port — is governed by federal standards, and so their claims are preempted.
JUDGE PAEZ: Is it possible there are emissions that aren’t “air pollutants” under federal law, which would permit a state claim?
MR. PETERS: I’m not sure. The scope of the Clean Air Act’s preemption provision is broad. Whether there’s some pollutant or item that doesn’t fall within it, I’m not certain — it may not fall within the scope of the Clean Air Act, but it may nonetheless be preempted by some other provision. The Federal Aviation Act has extremely extensive regulations about how fuselages, or airplanes in general, are to be designed, and that occupies the field of airworthiness for various aspects of the plane. So even if a claim falls outside the Clean Air Act, it may still be preempted by another provision like the Federal Aviation Act.
THE COURT: No other questions. Thank you, Mr. Peters.
THE COURT: Good morning.
MR. BERMAN: Good morning, your honor. Steve Berman and Nathan Emmons on behalf of the plaintiffs in this case. Let me start by saying procedure matters here. It matters greatly, because we haven’t heard the defendants mention the procedural posture this motion was decided on. As the district court noted, preemption is an affirmative defense, and you don’t grant a motion to dismiss on an affirmative defense unless the complaint itself pleads all the elements of that defense.
JUDGE PAEZ: That’s true. I think the issue with the case is obviously that it bears on areas of law with a lot of federal content — aviation and air quality. I think that’s why the district court granted the § 1292(b) request, to put it up here so we could take a look before further discovery or investment in the case. So the question I’d have is, particularly under the Clean Air Act, Section 233 — how do you respond to the plain text there?
MR. BERMAN: I respond to the plain text the way the district court did — two ways, actually. First, the district court said, under this court’s decision in Navy, you make these determinations on a case-by-case basis. Right now, on this record, it’s their burden to show they are in compliance with all federal regulations, not our burden.
JUDGE PAEZ: Well, have you alleged they’re violating any federal regulations?
MR. BERMAN: We’re not. They come in and say, “We’re in full compliance.” As the district court found, they imply they’re in compliance, but no one knows that. What they could have done is bring a factual attack — come in and say, “We’re actually in full compliance; the emissions we’re putting out are exactly what the regulators allow.” But they didn’t do that.
JUDGE PAEZ: The question is whether that was their burden, when the allegation here was that it violated state tort law. I think you’re right that the district court relied on the Navy case — maybe we should go back to that, since I think it’s an important part of the district court’s analysis. Isn’t that case a little different, since it involves more of a stationary structure? Do you think that matters?
MR. BERMAN: I don’t think it matters, because what matters at this stage is that we allege there was an unlawful intrusion on our property. They come back and say, “Well, this is all permitted,” but we don’t know that. Take, for example, your question, judge, about the different kinds of material we claim are coming onto our clients’ property. They say it’s air pollution. We make a distinction in the complaint — at ER 56 and 57 — between air pollution and heavy metals, and at paragraphs 54 and 55, between gases coming out of the back, which I’d agree are emissions, and flaking of heavy metals off the fuselage.
JUDGE PAEZ: But isn’t all of that subject to the Clean Air Act?
MR. BERMAN: I don’t believe the flaking is. And on this record, they haven’t established that it is. They didn’t put in any declarations or evidence on a factual attack to show the flaking is permitted or regulated.
JUDGE PAEZ: What if the flaking is this big? [gesturing]
MR. BERMAN: There’s no allegation it’s that big.
JUDGE PAEZ: I thought we’re talking about fine particulate matter that lands and maybe creates a dusting.
MR. BERMAN: We’re talking about toxic heavy metals coming down on our clients’ property from flaking, and they haven’t established that flaking is covered by the Clean Air Act or any regulation.
JUDGE PAEZ: I think the argument is that if it’s an air pollutant, it’s an emission from an aircraft or engine thereof. Is it an air — I’m sorry, your honor, go ahead. And the question is, do they need to go further than that, given the Massachusetts v. EPA case, which talks about any kind of compound, “airplane, etc., of whatever stripe”? Why would they need to do more than cite the statute and its breadth?
MR. BERMAN: Because if they’re not in compliance with the statute, and they’re depositing materials that aren’t allowed, or in amounts that aren’t approved, then they don’t have a preemption defense. We’ve alleged intrusion. They’re coming back with an affirmative defense saying this is all allowed, but they haven’t made a showing that it’s allowed. That’s what the district court was troubled by.
JUDGE PAEZ: I think “allowed” isn’t quite the right word — maybe “preempted” is the word.
MR. BERMAN: That’s what the district court was troubled by. It said, “We don’t know if this is authorized or permitted — let’s take some discovery and find out.” Now, on a procedural matter, I think we’re in the right position. We’ve alleged what we have to allege for a state-law claim. They want to assert this affirmative defense, but they can’t do it facially, because they’re only hypothetically saying “we’re in compliance,” as the judge found. And as this court has said, hypothetical conflicts aren’t enough to create preemption.
JUDGE PAEZ: Did you allege a violation of federal law?
MR. BERMAN: We have not. We very carefully did not, because we don’t have enough evidence. All of that is in their records — we don’t know what they’re doing, so we couldn’t allege a violation.
JUDGE PAEZ: You don’t know what landed on your clients’ land, but you don’t know if the way it’s coming out of the airplane exceeds what’s allowed by regulators?
MR. BERMAN: That’s what discovery is for — that’s what Judge Whitehead thinks. But the nature of the claim isn’t a theoretical federal-law claim we want to investigate to see if it’s true. The theory is that we have state-law liability that can exist on top of federal law.
JUDGE PAEZ: We hear arguments from the other side that if that’s true, we’re going to have litigation about every airport in the Ninth Circuit, exposing passengers, companies, everyone involved, to different legal standards. How do you address that?
MR. BERMAN: That’s hypothetical, and we allege that Sea-Tac is unusual — that’s in the complaint you’ve read. It’s unusual in that it only goes one way. Most airports you can approach from north, south, east, and west. Because of the unique one-way aspect of Sea-Tac, and because it’s in a valley, there’s a unique circumstance of pollution accumulation.
JUDGE PAEZ: Aren’t the routes into it essentially federally prescribed? Somebody can’t fly in a different way under federal law.
MR. BERMAN: That’s right, but I’m responding to the argument that this will happen everywhere. They said that two years ago when we argued the motion to dismiss. We won the motion to dismiss. No one’s filed a case. One reason, I think, is that Sea-Tac is very unusual — you’re not going to see this patchwork threatening the airline industry everywhere. And on that issue, I think procedure matters, because we don’t know exactly how the airlines would respond. They say we’re trying to change flight paths, or that they’d have to change flight paths. We’re saying: no, keep flying, we’re happy.
JUDGE PAEZ: But does it matter? If it’s “keep flying, but pay money to fly the federally prescribed routes,” doesn’t that raise the same preemption issue?
MR. BERMAN: I don’t think it does, because there’s nothing in any of the preemption arguments they cite suggesting that Congress wanted to take away the tort remedies we’re asserting on behalf of our clients. There’s a presumption against preemption. Congress didn’t expressly or impliedly intend to leave people who are poisoned by these flights without remedies. Let me —
JUDGE PAEZ: Let me stop right there. People who are poisoned, if they are poisoned, from an emission of an air pollutant from the aircraft or the aircraft engine — that is lamentable. But why isn’t that preempted?
MR. BERMAN: Because you look to see whether what we’re doing under the ADA — the words are whether the state law is a law “related to” a price, route, or service.
JUDGE PAEZ: I think we’re back to the Clean Air Act; we’re jumping around here.
MR. BERMAN: I’ve had so many interceptor missiles fired at me it’s hard to keep them all straight.
JUDGE PAEZ: I think the question is: under the Clean Air Act, if there’s some terrible, poisonous emission coming from the aircraft, why isn’t that an air pollutant from the aircraft or aircraft engine, and therefore preempted under the Clean Air Act? Because under California v. Navy, what the court said is you have to look at whether there’s a way to get relief that doesn’t change the operation of the aircraft.
MR. BERMAN: That’s directly out of the case, right. But it seems to me the Navy case involves an aircraft engine — or some testing sitting in a hangar on the ground somewhere — which is very different from any of the other cases.
JUDGE PAEZ: Well, let’s take the Montalvo case —
MR. BERMAN: Okay. In Montalvo, the court said the airlines hadn’t yet produced any evidence that reconfiguring the seating would have a material impact on federal deregulation. We’re at the same stage here. The airlines haven’t put forward any evidence, any declarations, and we don’t know that pursuing this lawsuit would have a material impact on services, pricing, or routing. There could be no impact on routing, because they’re just going to keep flying. There might be an impact on pricing, but this court has said that’s not enough.
JUDGE PAEZ: Now we’re talking about incoming missiles — you’re jumping provisions here too. We were talking about the Clean Air Act as the foundational preemption initially, and then, of course, we have the ADA as well. In an even —
JUDGE PAEZ: What discovery would you set out to get, on the issue that in your view would defeat preemption?
MR. BERMAN: Good question. Number one, we’d want discovery from the airlines and the Port on the flaking issue: is the flaking regulated, is it authorized, what do you know about it with respect to the emissions? We’d want to know what the emissions are and how they compare with what’s allowed. Then we’d want our experts to explain to the district court — which is what’s contemplated by Navy — whether there’s a way to reach a resolution that doesn’t cause a change in the aircraft engine.
JUDGE PAEZ: Let’s say they’ve exceeded emissions standards, whether under the EPA or some FAA-authorized manufacturing authority. Wouldn’t that then be a federal suit for violation of those regulations, and not a state-court claim?
MR. BERMAN: I think we could still maintain our state-court claims and use the violation of the emissions regulations as an additional predicate for those claims.
JUDGE McKEOWN: Could I just trigger off Judge Paez’s question there about the state-law claims? What is the theory — the negligence theory, let’s say — with respect to Alaska?
MR. BERMAN: I don’t have a negligence theory.
JUDGE McKEOWN: You don’t have a negligence claim?
MR. BERMAN: I think our claims are trespass, nuisance.
JUDGE McKEOWN: You didn’t allege negligence?
MR. BERMAN: Off the top of my head, I’m not recalling that. The gravamen of our case is an unwanted intrusion on our property. That’s a classic trespass, nuisance, and inverse condemnation claim — you’re taking my property.
JUDGE McKEOWN: If there’s a negligence claim —
MR. BERMAN: I’m sorry, I don’t recall it. What we claim the airlines have done unlawfully is enter our property.
JUDGE McKEOWN: And damage your property — that’s a trespass.
MR. BERMAN: It’s a trespass.
JUDGE McKEOWN: And what’s the nuisance?
MR. BERMAN: Same thing — entering the property in an unwanted fashion.
JUDGE McKEOWN: I’ve tried a nuisance and trespass case in my courtroom before. But is the whole focus of the case just cleanup?
MR. BERMAN: Yes. That’s why I don’t think preemption is an issue. We don’t care — just clean up after yourself. Keep flying, don’t change prices, don’t change routes. Just, if you’re going to dump your poison on us, clean it up.
JUDGE PAEZ: But doesn’t the statute direct us to the source of this? The Clean Air Act refers to “emission of any air pollutant from any aircraft or engine.” So it may be that you’d like cleanup, but isn’t it still the case that we’re talking about emissions from an aircraft or an engine?
MR. BERMAN: We are, in part. Again, I don’t believe they’ve established that the flaking is an emission. “Flaking” is a generic term — you might think of something bigger — but the allegations in the complaint are really about fine particulate matter. That’s what’s pled. With respect to the materials coming out of the back of the plane, we recognize those are emissions as the word is used in Section 233. As for the particulate matter that’s flaking, that’s not an emission, and I don’t think they’ve established that it’s considered one.
JUDGE PAEZ: I hate to dwell on matters that may be unimportant, but as I look at the complaint in front of me — resident-class claims, count one, negligence, alleged by plaintiffs against all defendants on behalf of the resident class.
MR. BERMAN: Okay, I stand corrected.
JUDGE PAEZ: And there’s another count against the other defendants. So I’d say the negligent act is depositing poison on your clients’ property —
MR. BERMAN: Without cleaning it up.
JUDGE PAEZ: — without the emissions?
MR. BERMAN: Whatever comes out of the plane.
JUDGE PAEZ: How could that be negligence?
MR. BERMAN: Because you’re not cleaning it up. You know you’re hurting me. You know, from these studies, that you’re poisoning me.
JUDGE PAEZ: Wait a minute. A basic negligence claim rests on duty. What’s the basis of the duty here?
MR. BERMAN: I think if they’re operating over someone’s property, they have a duty of care, and they’ve breached that duty by poisoning these people and not cleaning it up. On the Clean Air Act preemption argument, I’d point your honor to the Silkwood case, which says that even where the federal government comprehensively regulates an industry, Congress assumed that state-law remedies, in whatever form, were available to those injured. I think it would be an extraordinarily broad reading of the Clean Air Act to say it gives them immunity from doing what they did. You’ve obviously read all this — this is not a good situation. This is an underprivileged community that’s being poisoned. The notion that they can’t do anything about it is pretty extraordinary — an extraordinary immunity. All the district court judge did on these issues was say, “We don’t really know what’s going on here, so I’m going to take a pragmatic approach,” and, on a facial attack, they didn’t properly make it, because we didn’t plead into the affirmative defense — we avoided it. So let’s go back and find out what’s going on.
JUDGE PAEZ: Could you explain your theory of the inverse condemnation claim?
MR. BERMAN: Yes. Under Washington law, there’s really an overlap between nuisance, trespass, and condemnation. They’ve come and taken or diminished the value of my property, and that’s a taking. The district court upheld that claim. I actually tried a takings case on the same theory against the Port of Seattle in this very courtroom about twelve years ago, and our theory was condemnation, nuisance, and trespass. Those are the basic claims you see in any airport noise lawsuit relating to airports.
Unless you have further questions, your honors, I think I’ve covered what I want to cover.
THE COURT: Okay. Thank you, Mr. Berman.
Part 4: Rebuttal and closing
THE COURT: So we’ll hear first from Mr. Dvoretzky.
MR. DVORETZKY: Thank you. Let me start with Judge Paez’s question about how you read the complaint. It’s not about how you read the complaint — it’s about how you understand the complaint as a matter of law. I thought the colloquy with Mr. Berman was very instructive on that. The duty of care doesn’t come from the failure to clean up. The duty of care, under Washington law, would be not to pollute in the first place. But the alleged pollution is a result of flying federally regulated aircraft and engines on federally regulated flight paths.
Second, with respect to the question you asked about whether anyone is responsible — we detail in our brief, at pages 17 to 20, all the ways in which the EPA and the FAA take into account the effects of emissions on surrounding neighborhoods, including at Sea-Tac in particular.
As to the preemption question, the Supreme Court held in City of Burbank that an ordinance about late-night takeoffs was preempted even though Congress hadn’t set up any scheme for the affected neighborhoods to recover. So that doesn’t affect the preemption analysis.
With respect to discovery, the court asked Mr. Berman what he’d like to get in discovery. I wrote down three things he listed. One: is flaking regulated? That’s not a fact question — it’s a question of law, and it’s plainly covered by the Clean Air Act. Two: what are the emissions, and were they allowed?
JUDGE PAEZ: Pause on the flaking. There are arguments being made that flaking may not be covered by the Clean Air Act. Elaborate on that for us.
MR. DVORETZKY: The Clean Air Act covers any air pollutant from any aircraft or engine. I’d focus on two things about that language. One, it covers things not just from the engine but from the aircraft. Thinking of flaking as something that comes from the aircraft is the ordinary understanding of that language. Two, the Clean Air Act defines “air pollutant” — again, 42 U.S.C. § 7602(g) — quite broadly: any air pollution agent or matter which is emitted into or otherwise enters the ambient air. As the court’s question suggested, when you read their complaint, they’re talking about very fine matter, very fine soot, that comes from the aircraft. That, under the plain language of the statute, is an emission from the aircraft. An airplane wing falling off wouldn’t be covered by this — I don’t think, as a matter of ordinary reading, that would be considered somewhere between tiny flakes and big — wherever that line is, if there is one, the language of their complaint is talking about very fine soot and very fine particulate matter that comfortably fits within this statutory definition. To the court’s questions to Mr. Peters, I think that’s the easiest way to resolve this case, although I think impossibility preemption is a close second, in my view.
JUDGE PAEZ: How do you respond to Mr. Berman’s argument that when they drafted the complaint, they were sensitive to these preemption issues and were careful not to only allege state-law claims — that they crafted the complaint in a way they thought would survive, and the district court seemed to go along with that? The district court agreed that preemption is a defense, and that the allegations in the complaint don’t really get to the factual predicates for preemption — that it’s really your burden to come forward, and you didn’t come forward with evidence, so we just look at the allegations in the complaint. That’s all we have.
MR. DVORETZKY: That’s just not how preemption law works. I’m glad they were sensitive to the preemption problem — I don’t think they’ve —
JUDGE PAEZ: Let me ask you this: is preemption a defense?
MR. DVORETZKY: It is a defense.
JUDGE PAEZ: Okay.
MR. DVORETZKY: But if you look at how the Supreme Court has analyzed preemption in cases like PLIVA and Bartlett — the pharmaceutical cases — the question isn’t whether there’s some hypothetical way you could comply with both state and federal law. The question is: you take federal law as you find it. What does federal law require, and does complying with the state-law duties as the plaintiffs see them put you in conflict with federal law? Here, their complaint, if you read it, is dependent on emissions. That’s the basis for the duty to clean up in the first place. That makes it a state-law standard respecting emissions. It also puts them in conflict with the extensive federal regulations about routes, flight paths, aircraft design, and emissions from the engines. None of this would be unique to Sea-Tac. If you look at any other airport in the country —
JUDGE PAEZ: The district court said that’s all remedy — that maybe if that’s what they’re asking for, then maybe this is all preempted, but it’s too soon to make that decision. How do you respond to what the district court did?
MR. DVORETZKY: Candidly, I don’t understand that logic, because I don’t understand — as I think your own question suggested to Mr. Berman — how you can separate the remedy from there being an underlying state-law duty. This goes back to my example with my neighbor. My neighbor isn’t upset with me because I haven’t paid his medical expenses — he’d be upset with me because I punched him. Here, the state-law duty they’re alleging has to be a duty not to pollute. It doesn’t matter what words they put on the page of their complaint. Paper doesn’t refuse ink. You can write in the complaint that you’re “really” challenging the cleanup cost, but the only way to understand that as a matter of law is that what you’re challenging is the unlawful conduct that precipitated the cleanup cost in the first place. If Washington law makes it unlawful to emit at certain levels when approaching the airport, that directly conflicts with federal law. And nothing about that is unique to Sea-Tac. If you look at any other airport, sure, flight paths are set in advance, but that’s also going to depend on what air traffic control says with respect to weather and other flights in the area. It’s not like, when you approach Sea-Tac, pilots can only go one way — there’s going to be some variation based on conditions. There’s nothing unique about Sea-Tac that would prevent this sort of lawsuit from proliferating everywhere in the country. As to why it hasn’t come up in the last couple of years — well, this complaint was brought, and I do think it has obvious preemption problems that they were sensitive to, and this court granted review. So I think if this court were to affirm, that is what would lead to the sorts of problems we’re forecasting.
THE COURT: Okay. Thank you.
THE COURT: We’ll hear from Mr. Tayrani, who has the last word here.
MR. TAYRANI: Thank you, your honor. On the inverse condemnation claim against the Port — all of the arguments Delta and Alaska have made this morning apply with equal force to the inverse condemnation claim. Plaintiffs have never argued to the contrary.
On the timing of this court’s resolution of the issues in this case — this court and the Supreme Court regularly dismiss cases on preemption grounds on 12(b)(6) in the ADA context. The Supreme Court did that in Wolens. It did that in Ginsberg. This court did it in In re Korean Air Lines, in the implied preemption context. This court dismissed aviation-related claims on implied preemption grounds, on 12(b)(6), in Montalvo and in National Federation of the Blind.
The simple fact is that there are no facts that can change the fundamental truth about this complaint: it is a direct attack on the defendants’ ordinary flight operations into and out of Sea-Tac. There are no facts that can change the fundamental truth that the plaintiffs are seeking to override the FAA’s expert judgment about the flight paths and altitudes the defendants should fly. And there are no facts that can change the fundamental truth that the plaintiffs are seeking to use state law to second-guess the EPA’s determination about permissible emissions standards. The failure-to-clean-up theory that plaintiffs have developed on appeal can’t cover up, can’t conceal, the fact that this complaint is challenging emissions from ordinary flight operations. What the defendants have supposedly failed to clean up is the ordinary byproduct of flights into and out of Sea-Tac, along federally prescribed flight paths, at federally prescribed altitudes. For all of these reasons, this complaint is preempted multiple times over. Thank you.
THE COURT: We thank all of you for your arguments. This is one of those cases that has a lot of lawyers working on it, and I’m sure some younger lawyers were working on it too — so we thank them for their work. This case is submitted. We’ll stand in recess until tomorrow morning. Thank you.
This is a machine-generated transcript generated on the fly by Google/Youtube/AI. Accuracy totally not guaranteed. Provided only as a convenience and to help people with disabilities. Caveat lector!
1This is a machine-generated transcript generated on the fly by Google/Youtube/AI. Accuracy totally not guaranteed. Provided only as a convenience and to help people with disabilities. Caveat lector!