The authority of the state government to pass laws with respect to aviation safety is confined in the police power of the state. Accordingly, the state, to ensure self protection, can exercise the right and jurisdiction to control airspace above its territory. Likewise, every state has the power to regulate the use of its airspace, except as limited by the powers granted to the federal government.
In Erickson v. King, 218 Minn. 98 (Minn. 1944), the court observed that “it is essential to the safety of sovereign states that they possess jurisdiction to control the airspace above their territories. That right rests on the obvious practical necessity of self-protection. That power extends to the regulation of passage through the air of all persons in the interests of the public welfare and the safety of those on the face of the earth.”
However, whether the states may invoke their police powers with respect to aviation safety depends on whether the field is federally preempted. Furthermore, aviation safety is not one of the historic police powers of the states. Aviation safety has historically been federally regulated. Accordingly, most state and local regulations of activities that are, per se, aeronautical in nature or aviation-related uses of airspace are preempted by federal law[i]. In Harrison v. Schwartz, 319 Md. 360 (Md. 1990), the court held that “the United States Constitution and the laws of the United States are the supreme law of the land. Because of this supremacy, valid federal legislation and regulations may preempt state or local laws or regulatory actions. When valid federal law actually conflicts with state law, the former preempts the latter. And if Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted. If the federal law expressly states a preemptive intent, that intent will govern. Moreover, even absent express preemption, when a federal statute made “in Pursuance” of the Constitution is so comprehensive that it occupies the field leaving no room for state action, preemption also occurs.”
The four ways in which the federal law can pre-empt state law are:
- explicit statutory language; or
- implicit statutory language, or
- actual conflict, or
- occupation of the field.
In some cases, the U.S. Supreme Court has held that Congress consolidation of control of aviation in one agency indicated Congress’s intent to federally preempt aviation safety[ii]. However, there are instances where the courts have recognized that federal aviation law does not preempt local regulation of the location of airports or heliports, which must comply with local zoning ordinances[iii]. Further, state and local governments are also given authority with respect to the regulation of proposed construction that is deemed dangerous to air navigation.
Consequently, although Congress has expressly preempted certain areas of aviation regulation, by enacting such express preemption provisions, Congress however did not intend to make the area of aviation safety vulnerable to state and territorial regulation[iv].
[i] Garden State Farms, Inc. v. Bay, 77 N.J. 439 (N.J. 1978).
[ii] Abdullah v. American Airlines, 969 F. Supp. 337 (D.V.I. 1997).
[iii] Gustafson v. City of Lake Angelus, 76 F.3d 778 (6th Cir. Mich. 1996).