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17-3481-cv (L) Tweed-New Haven Airport Authority v. Tong 1 In the 2 United States Court of Appeals 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 For the Second Circuit August Term 2018 No. 17-3481-cv; 17-3918-cv TWEED-NEW HAVEN AIRPORT AUTHORITY, Plaintiff-Appellant, CITY OF NEW HAVEN, Intervenor Plaintiff-Appellant, v. WILLIAM TONG, in his official capacity as Attorney General for the State of Connecticut, Defendant-Appellee.* Appeal from the United States District Court for the District of Connecticut No. 15 Civ. 1731 (RAR), Robert A. Richardson, Magistrate Judge, Presiding. (Argued: December 12, 2018; Decided: July 9, 2019) Before: SACK, PARKER, and CHIN, Circuit Judges. ____________ * The Clerk of Court is respectfully directed to amend the official caption as indicated above. 1 17-3481-cv (L) Tweed-New Haven Airport Authority v. Tong 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Plaintiff-Appellant Tweed-New Haven Airport Authority (“Tweed”), seeking to expand its primary runway, sued to invalidate a Connecticut statute that had limited the runway’s length. See Conn. Gen. Stat. § 15-120j(c). Tweed contended that the statute was preempted by the Federal Aviation Act, 49 U.S.C. § 40101 et seq. The United States District Court for the District of Connecticut (Richardson, Magistrate Judge), concluded that (1) Tweed lacked standing; and (2) assuming Tweed had standing, the Federal Aviation Act did not preempt the statute. We disagree. Accordingly, we reverse and remand for entry of judgment in favor of Tweed. REVERSED and REMANDED. Hugh I. Manke, John C. King, Christopher A. Klepps, Updike, Kelly & Spellacy, P.C., Hartford, Ct., for plaintiff-appellant TweedNew Haven Airport Authority. John Rose, Jr., Corporation Counsel, New Haven Office of the Corporation Counsel, New Haven, Ct., for intervenor plaintiff-appellant Tweed-New Haven Airport Authority. Drew S. Graham, Assistant Attorney General, Hartford, Ct., for defendant-appellee William Tong, Attorney General of the State of Connecticut. 32 2 17-3481-cv (L) Tweed-New Haven Airport Authority v. Tong 1 BARRINGTON D. PARKER, Circuit Judge: 2 Tweed-New Haven Airport is located in the Town of East Haven and the 3 City of New Haven, Connecticut. The Airport is owned by the City of New 4 Haven and leased to and operated by Tweed-New Haven Airport Authority 5 (“Tweed”).1 Tweed sued the then Connecticut Attorney General George Jepsen in 6 his official capacity2 (the “State”), seeking a declaratory judgment that a 7 Connecticut statute (the “Runway Statute” or “Statute”) that limits the Airport’s 8 runway to its current length of 5,600 feet was invalid. See Conn. Gen. Stat. § 15- 9 120j(c). Tweed claimed that the Statute was preempted by federal laws governing 1 Tweed is “a body politic and corporate” created through legislation by the state of Connecticut. See Conn. Gen. Stat. § 15-120i(a). While its originating statute describes Tweed as a “public instrumentality and political subdivision” of Connecticut, it “shall not be construed to be a department, institution or agency of the state.” Id. It has a fifteen-member board of directors, comprised of persons appointed by the mayor of New Haven, the mayor of East Haven, and the South Central Regional Council of Governments. Id. § 15-120i(b). If Tweed is terminated, its rights and property pass to the City of New Haven. Id. § 15120i(e). 2 Since the inception of the suit, the identity of the Connecticut Attorney General has changed from George Jepsen to William Tong. This change is reflected in the case caption. 3 17-3481-cv (L) Tweed-New Haven Airport Authority v. Tong 1 the regulation of air transportation, including the Federal Aviation Act 2 (“FAAct”), see 49 U.S.C. § 40101 et seq. 3 Following a bench trial in the United States District Court for the District of 4 Connecticut (Richardson, M.J.),3 the court concluded that Tweed lacked standing 5 to sue because its injury was not caused by the Statute and that, assuming Tweed 6 could establish standing, the Runway Statute was not preempted by the federal 7 laws to which Tweed cited. Because we conclude that Tweed has standing and 8 that the Runway Statute is preempted by the FAAct, we reverse.4 9 BACKGROUND 10 The Airport serves the New Haven area. It has a catchment area—the area 11 from which an airport expects to draw commercial air service passengers—in 12 excess of 1,000,000 people. The Airport’s primary runway, Runway 2/20, is 13 currently 5,600 feet long. The runway is one of the shortest commercial airport 14 runways in the country, and it is the shortest runway for an airport with a 3 The parties consented to proceed before a magistrate judge through the entry of final judgment. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. 4 The salient facts are not in dispute and have been stipulated to by the parties. See Joint App’x 51-66. 4 17-3481-cv (L) Tweed-New Haven Airport Authority v. Tong 1 catchment area as large as Tweed’s area. The Airport’s catchment area is the 2 largest catchment area without nonstop flights to Orlando, and there are no 3 flights at the Airport to a number of East Coast cities such as Boston, Washington 4 D.C., and Atlanta. 5 In 2009, the Connecticut legislature, seeking to prevent the expansion of 6 Runway 2/20, passed the Runway Statute, which provides that “Runway 2-20 of 7 the airport shall not exceed the existing paved runway length of five thousand six 8 hundred linear feet.” Conn. Gen. Stat. § 15-120j(c). The Runway Statute prevents 9 Tweed from extending Runway 2/20 past its current length. 10 The short length of the Airport’s runway has sharply limited the 11 availability of safe commercial air service at Tweed. The length of a runway has a 12 direct bearing on the weight load and passenger capacity that can be handled on 13 any given flight. For example, at the time of trial, American Airlines, the one 14 commercial airline providing service to and from the Airport, was unable to 15 safely fill its planes to capacity and was required, depending on the weather, to 16 leave between four and nine seats empty. 5 17-3481-cv (L) Tweed-New Haven Airport Authority v. Tong 1 Tweed has been unable to attract new airline services. Tweed has 2 contacted approximately ten different airlines and has been unable to convince 3 them to operate out of the Airport. One airline, Allegiant Air, LLC, began an 4 economic analysis of the feasibility of bringing additional flights to the Airport 5 but concluded it would be pointless to continue with the analysis unless the 6 runway were extended. 7 Lengthening the runway would allow for the safe use of larger aircraft, 8 allow flights with no seating restrictions, allow more passengers on each 9 airplane, and allow service to more destinations. It would also allow Tweed to 10 attract more carriers and expand the availability of safe air service for its 11 customers. 12 As required by the Federal Aviation Administration (“FAA”), Tweed has 13 prepared a Master Plan for upgrading its airport, which includes extending the 14 runway.5 In 2002, the Master Plan—including the runway expansion—was 5 A Master Plan is required by the FAA for each commercial airport within its jurisdiction, such as Tweed, and represents a blueprint for the long-term development goals of the airport’s facilities. 6 17-3481-cv (L) Tweed-New Haven Airport Authority v. Tong 1 approved by the FAA and by the State of Connecticut. However, in 2009, the 2 State changed its position and passed the Runway Statute. 3 Tweed, seeking to lengthen the runway, sued for prospective injunctive 4 relief, contending that federal law including the FAAct preempted the Runway 5 Statute. The City of New Haven intervened as an additional plaintiff. The State 6 moved to dismiss on several grounds, including that Tweed lacked Article III 7 standing, that, as a political subdivision of the State of Connecticut, Tweed could 8 not sue the State, and that the Runway Statute was not preempted. The District 9 Court denied the State’s motion. 10 At trial, the parties largely relied on a joint stipulation of facts. The District 11 Court ultimately concluded that (1) Tweed lacked standing to sue because it had 12 not shown an injury-in-fact and causation attributable to the Statute; and (2) even 13 if Tweed had standing, federal law (including the FAAct) did not preempt the 14 Runway Statute. See generally Tweed-New Haven Airport Auth. v. Jepsen, No. 15-cv- 15 01731, 2017 WL 4400751, 2017 LEXIS 162356 (D. Conn. Oct. 3, 2017). 16 Tweed raises both these issues on appeal and the State contends, as it did 17 below, that Tweed cannot sue Connecticut because it is a political subdivision of 7 17-3481-cv (L) Tweed-New Haven Airport Authority v. Tong 1 the State. We review each of these questions de novo. Montesa v. Schwartz, 836 F.3d 2 176, 194 (2d Cir. 2016) (standing); N.Y. SMSA Ltd. P’ship v. Town of Clarkstown, 612 3 F.3d 97, 103 (2d Cir. 2010) (per curiam) (preemption). 4 DISCUSSION 5 I. 6 To establish Article III standing, a plaintiff must prove: “(1) injury-in-fact, 7 which is a ‘concrete and particularized’ harm to a ‘legally protected interest’; (2) 8 causation in the form of a ‘fairly traceable’ connection between the asserted 9 injury-in-fact and the alleged actions of the defendant; and (3) redressability, or a 10 non-speculative likelihood that the injury can be remedied by the requested 11 relief.” W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 106-107 12 (2d Cir. 2008) (emphasis omitted) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 13 555, 560-61 (1992)). Each of these elements “must be supported adequately by the 14 evidence adduced at trial.” Lujan, 504 U.S. at 561 (internal quotation marks and 8 17-3481-cv (L) Tweed-New Haven Airport Authority v. Tong 1 citation omitted). Based on the facts at trial, we conclude that Tweed meets each 2 of these requirements.6 3 First, we have little difficulty concluding that Tweed suffered an injury-in- 4 fact. Where, as here, “the plaintiff is himself an object of the action (or forgone 5 action) at issue . . . , there is ordinarily little question that the action or inaction 6 has caused him injury, and that a judgment preventing or requiring the action 7 will redress it.” Lujan, 504 U.S. at 561-62. The Runway Statute directly targets 8 Tweed and prevents it from extending its runway. 9 In addition, Tweed has established that it is injured by the threatened 10 enforcement of the Statute should Tweed attempt to extend the runway. The 11 State claims that standing is not available under this theory because Connecticut 12 has made no overt threat to enforce the Statute. Crediting this argument would 13 run afoul of the Supreme Court’s admonition not to put “the challenger to the 14 choice between abandoning his rights or risking prosecution.” MedImmune, Inc. v. 6 Only one party must have standing to seek each form of relief. Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651 (2017). Because Tweed and the City of New Haven seek the same relief, we do not separately discuss the standing of the City. 9 17-3481-cv (L) Tweed-New Haven Airport Authority v. Tong 1 Genentech, Inc., 549 U.S. 118, 129 (2007) (internal quotation marks omitted). The 2 very purpose of the Declaratory Judgment Act was to avoid requiring a litigant to 3 confront this dilemma. Id. 4 When courts consider whether the threatened enforcement of a law creates 5 an injury for the purposes of standing, “an actual . . . enforcement action is not a 6 prerequisite to challenging the law”; a pre-enforcement challenge is sufficient. 7 Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014); see MedImmune, 549 8 U.S. at 128-29; see also Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 9 229, 234 (2010). Where a statute specifically proscribes conduct, the law of 10 standing does “not place the burden on the plaintiff to show an intent by the 11 government to enforce the law against it. Rather, it [has] presumed such intent in 12 the absence of a disavowal by the government or another reason to conclude that 13 no such intent existed.” Hedges v. Obama, 724 F.3d 170, 197 (2d Cir. 2013). The 14 record in this case shows no such disavowal. 15 Second, Tweed has demonstrated that its injury is caused by the Runway 16 Statute. For standing purposes, a plaintiff is required only to show that the injury 17 “is fairly traceable to the challenged conduct of the defendant.” Spokeo, Inc. v. 10 17-3481-cv (L) Tweed-New Haven Airport Authority v. Tong 1 Robins, 578 U.S. ___, 136 S. Ct. 1540, 1547 (2016). Where, as here, a plaintiff is 2 threatened by the enforcement of a statute that specifically targets the plaintiff, 3 the requirement is met. Lujan, 504 U.S. at 561-62. The Runway Statute is a solid 4 barrier to extension of the Airport’s runway. Nothing can happen while the 5 Statute is in place. Tweed’s injury is, therefore, “fairly traceable” to the Statute. 6 The District Court concluded that, because other uncertainties stood in the 7 way of the completion of an extended runway, the causation element was not 8 satisfied. The District Court reasoned that because Tweed would have to obtain 9 additional funding, secure approvals from various regulators, and obtain 10 environmental and other permits, none of which was assured, there did “not 11 appear to be a direct causal relationship between the statute and the plaintiff’s 12 alleged injury.” Tweed-New Haven, 2017 WL 4400751, at *8, 2017 LEXIS 162356, at 13 *22-23. 14 As an initial matter, the uncertainties seized upon by the District Court 15 have no bearing on Tweed’s fears of the Statute’s enforcement, which is an 16 independent basis for Article III standing. Further, we disagree with the District 17 Court’s analysis of the causation element of standing. A plaintiff is not required 11 17-3481-cv (L) Tweed-New Haven Airport Authority v. Tong 1 to show that a statute is the sole or the but-for cause of an injury. An injury can 2 be “fairly traceable” even when future contingencies of one kind or another 3 might disrupt or derail a project. The fact that a project’s ultimate completion 4 may be uncertain because a plaintiff must undertake additional steps, such as 5 obtaining funding, environmental permits, or additional carriers, does not defeat 6 standing. Nearly every project of any complexity involves contingencies or 7 uncertainties of some sort. The point of a standing inquiry is not to figure out 8 whether a plaintiff will likely achieve a desired result. The point is simply to 9 ensure that a plaintiff has a sufficient nexus to the challenged action in the form 10 of a personal stake in the litigation so that the case or controversy requirements 11 of Article III are met. See Chevron Corp. v. Donziger, 833 F.3d 74, 121 (2d Cir. 2016). 12 The Supreme Court has held that there is standing where “the challenged 13 action of the [government] stands as an absolute barrier” that will be removed “if 14 [the plaintiff] secures the . . . relief it seeks.” Vill. of Arlington Heights v. Metro. 15 Hous. Development Corp., 429 U.S. 252, 261 (1977). There, a developer sought to 16 build a cluster of low- and moderate-income townhouses in the Village of 17 Arlington Heights. Id. at 254. The developer eventually sued the Village for 12 17-3481-cv (L) Tweed-New Haven Airport Authority v. Tong 1 denying its application for a zoning variance, alleging racial discrimination and 2 violations of the Fair Housing Act of 1968. Id. The Village argued that there was 3 no injury for standing purposes because contingencies stood in the way of final 4 completion of the project. Id. at 261 & n.7. 5 The Supreme Court, in language fully applicable here, rejected the view 6 that the existence of contingencies was a barrier to standing. Id. at 261. The Court 7 held that standing was not defeated because the developer “would still have to 8 secure financing, qualify for federal subsidies, and carry through with 9 construction.” Id. (footnote omitted). We are, the Court emphasized, “not 10 required to engage in undue speculation as a predicate for finding that the 11 plaintiff has the requisite personal stake in the controversy.” Id. at 261-62. 12 We have also held that, for standing purposes, it was enough that 13 plaintiffs alleged “diligent efforts” to secure funding and had made progress on 14 the project in question. NAACP v. Town of Huntington, 689 F.2d 391, 394 (2d. Cir. 15 1982). In Town of Huntington, a not-for-profit housing group sought to construct a 16 large multi-family housing unit. The group sued the town, alleging that its 17 zoning regulations violated federal law. Id. at 393. While the suit was pending, 13 17-3481-cv (L) Tweed-New Haven Airport Authority v. Tong 1 the funds appropriated for the project lapsed and the town moved to dismiss the 2 complaint on the ground that the lack of funding would render the requested 3 relief (invalidation of the ordinance) meaningless. We nevertheless found 4 standing because the group had shown diligent efforts to secure funding and had 5 shown “some reasonable prospect for future financing” and obtaining 6 governmental approvals if the statute was invalidated, which is all that is 7 required. Id. at 394. Tweed comfortably meets this test. It has shown more than 8 “diligent efforts” toward, and a reasonable prospect of, the project’s completion. 9 Third, as to redressability, there is no question that a favorable decision 10 will likely redress Tweed’s fear of the Runway Statute’s enforcement. Cayuga 11 Nation v. Tanner, 824 F.3d 321, 332 (2d Cir. 2016) (stating that redressability 12 requirement is met where the court could prevent enforcement of a preempted 13 law). A favorable decision will also likely redress Tweed’s current inability to 14 move forward with the runway extension and will remove the absolute barrier 15 the Statute imposes. See W.R. Huff Asset Mgmt. Co., 549 F.3d at 106-107; see also 16 Lujan, 504 U.S. at 560-61. Accordingly, we hold that Tweed has established 17 Article III standing. 14 17-3481-cv (L) Tweed-New Haven Airport Authority v. Tong 1 2 II. Next, the State contends that Tweed cannot bring suit against Connecticut 3 because it is a political subdivision of Connecticut. As support for this 4 proposition, the State relies on Williams v. Mayor of Baltimore, 289 U.S. 36 (1933), 5 and City of Trenton v. New Jersey, 262 U.S. 182 (1923). Williams involved a suit 6 under the Equal Protection Clause and Trenton involved a suit under the Contract 7 Clause and the Fourteenth Amendment. In both cases, the Supreme Court held 8 that suits under those provisions were not permitted. Williams, 289 U.S. at 40; City 9 of Trenton, 262 U.S. at 188. 10 The view that subdivisions were broadly prevented from suing a state was 11 put to rest in Gomillion v. Lightfoot, 364 U.S. 339 (1960). There, the Supreme Court 12 considered a challenge under the Fourteenth and Fifteenth Amendments to 13 Alabama’s gerrymandering of the boundaries of the City of Tuskegee. Id. at 340. 14 The Court rejected Alabama’s assertion that a state’s power over its political 15 subdivisions was unrestricted by the Constitution: “Legislative control of 16 municipalities, no less than other state power, lies within the scope of relevant 17 limitations imposed by the United States Constitution.” Id. at 344-45. The Court 15 17-3481-cv (L) Tweed-New Haven Airport Authority v. Tong 1 emphasized that the “correct reading” of Williams and City of Trenton is “that the 2 State’s authority is unrestrained by the particular prohibitions of the Constitution 3 considered in those cases.” Id. at 344. Significantly, none of those cases involved 4 the Supremacy Clause, which raises unique federalism concerns. 5 Hundreds of federal laws apply nationwide to states and their political 6 subdivisions. They impose various responsibilities and prohibitions on states and 7 political subdivisions that are intended by Congress to apply nationwide. If the 8 Supremacy Clause means anything, it means that a state is not free to enforce 9 within its boundaries laws preempted by federal law. Lawsuits invoking the 10 Supremacy Clause are one of the main ways of ensuring that this does not occur. 11 In the years following Gomillion, the Supreme Court has repeatedly 12 entertained suits against a state by a subdivision of the state, including cases 13 under the Supremacy Clause. See Va. Office for Prot. & Advocacy v. Stewart, 563 14 U.S. 247, 252-53 (2011) (considering suit by independent state agency against its 15 state for violation of federal law alleged to conflict with state law); Nixon v. Mo. 16 Mun. League, 541 U.S. 125, 130-31 (2004) (considering Supremacy Clause 17 challenge by municipalities and utilities against state statute); Lawrence Cty. v. 16 17-3481-cv (L) Tweed-New Haven Airport Authority v. Tong 1 Lead-Deadwood Sch. Dist., 469 U.S. 256, 258 (1985) (considering Supremacy Clause 2 challenge by county against state statute); accord Bd. of Educ. v. Allen, 392 U.S. 236 3 (1968); see also Romer v. Evans, 517 U.S. 620, 623-24 (1996) (state constitutional 4 amendment preventing local anti-discrimination ordinances violated the Equal 5 Protection Clause); Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 487 (1982) 6 (state statute prohibiting a local busing desegregation plan violated the 7 Fourteenth Amendment).7 In light of this authority, we hold that a subdivision 8 may sue its state under the Supremacy Clause. In reaching this conclusion we 9 join the Fifth and Tenth Circuits. Rogers v. Brockette, 588 F.2d 1057 (5th Cir. 1979); 10 Branson Sch. Dist. RE-82 v. Romer, 161 F.3d 619 (10th Cir. 1998). But see 11 Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360 (9th Cir. 12 1998) (holding a political subdivision lacks standing to sue its own state under 13 the Supremacy Clause). 7 We have held that a political subdivision does not have standing to sue its state under the Fourteenth Amendment. See Aguayo v. Richardson, 473 F.2d 1090, 1100 (2d Cir. 1973); City of New York v. Richardson, 473 F.2d 923, 929 (2d Cir. 1973). Those cases provide no aid to the State as Tweed is not seeking to assert its own rights under the Fourteenth Amendment, which presents considerations different from those we consider here. 17 17-3481-cv (L) Tweed-New Haven Airport Authority v. Tong 1 III. Tweed next contends that the Runway Statute is preempted by the FAAct.8 2 3 We agree. The FAAct “was enacted to create a uniform and exclusive system of 4 federal regulation in the field of air safety . . . . [It] was passed by Congress for 5 the purpose of centralizing in a single authority . . . the power to frame rules for 6 the safe and efficient use of the nation’s airspace.” Air Transp. Ass’n of Am., Inc. v. 7 Cuomo, 520 F.3d 218, 224-25 (2d Cir. 2008) (internal quotation marks omitted). 8 With these objectives in mind, we have held that the FAAct impliedly preempts 9 the entire “field of air safety.” Goodspeed Airport LLC v. E. Haddam Inland Wetlands 10 & Watercourses Comm’n, 634 F.3d 206, 210-11 (2d Cir. 2011). Accordingly, “[s]tate 11 laws that conflict with the FAA[ct] or sufficiently interfere with federal regulation 12 of air safety are . . . preempted.” Fawemimo v. Am. Airlines, Inc., 751 F. App’x 16, 13 19 (2d Cir. 2018) (summary order). Our court has been clear as can be that FAAct 8 Tweed also contends that the Runway Statute is preempted by the Airline Deregulation Act and the Airport and Airway Improvement Act. Because we conclude that the Runway Statute is preempted by the FAAct, we make no determination concerning preemption under these other statutes. 18 17-3481-cv (L) Tweed-New Haven Airport Authority v. Tong 1 preemption applies to airport runways. Air Transp. Ass’n, 520 F.3d at 224-25 2 (FAAct preemption “extends to grounded planes and airport runways”). 3 Our next inquiry is whether the Runway Statute falls within the scope of 4 that preemption. “The key question is thus at what point the state regulation 5 sufficiently interferes with federal regulation that it should be deemed 6 pre-empted[.]” Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 107 (1992). We 7 straightforwardly conclude that the Runway Statute falls well within the scope of 8 the FAAct’s preemption because of its direct impact on air safety. 9 The Airport has the 13th shortest runway out of the 348 airports where 10 commercial service is provided. Furthermore, the State has conceded that “the 11 length of the runway has a direct bearing on the weight load and passenger 12 capacity that can be safely handled on any given flight.” Joint App’x 55. Because 13 of the Statute, “[w]eight penalties are imposed on [existing] aircraft [at the 14 Airport] for safety reasons.” Id. The Statute has limited the number of passengers 15 that can safely occupy planes leaving the Airport by preventing planes from 16 taking off at maximum capacity. For these safety reasons, carriers are forced to 17 cut back on an ad-hoc basis the number of passengers that can safely be carried, 19 17-3481-cv (L) Tweed-New Haven Airport Authority v. Tong 1 the amount of baggage they can bring with them, and the total weight of luggage 2 that can be loaded. 3 Additionally, the Runway Statute has sharply limited the types of planes 4 that can use the runway. Modern jet passenger planes of the types used across 5 the country cannot safely use the Airport. This localized, state-created limitation 6 is incompatible with the FAAct’s objective of establishing “a ‘uniform and 7 exclusive system of federal regulation’ in the field of air safety.” Air Transp. Ass’n, 8 520 F.3d at 224 (quoting City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 9 639 (1973)). If every state were free to control the lengths of runways within its 10 boundaries, this Congressional objective could never be achieved. 11 The inflexibility of the ban imposed by the Runway Statute also counsels in 12 favor of preemption. The Runway Statute’s restriction on runway development is 13 absolute—it is a total barrier to improvements that could make Tweed safer and 14 more modern. Courts in this Circuit have held that the FAAct preempts 15 significantly less rigid statutes that merely place limitations rather than total bans 16 on runway modification. For example, in Tweed-New Haven Airport Authority v. 17 Town of East Haven (“Tweed I”), the court held that a state regulation that required 20 17-3481-cv (L) Tweed-New Haven Airport Authority v. Tong 1 regulatory approval before the runway safety areas could be constructed was 2 preempted. 582 F. Supp. 2d 261, 268-69 (D. Conn. 2008). Similarly, in Town of 3 Stratford v. City of Bridgeport, the court held that a statute that required an airport 4 to obtain approval of the town in which it is located before it can undertake a 5 federally mandated runway safety project was preempted. No. 10-cv-394, 2010 6 WL 11566477, at *6, 2010 LEXIS 65975, at *21-23 (D. Conn. June 18, 2010). Those 7 statutes merely required state or city approval for improvements to an airport’s 8 runway. Unlike those cases, the Runway Statute prohibits runway expansion 9 entirely. The Statute’s interference with the field of air safety is, therefore, even 10 greater than was the case with other statutes courts have held to be preempted by 11 the FAAct. 12 Finally, we have noted that FAAct preemption is less likely to apply “to 13 small airports over which the FAA has limited direct oversight.” Goodspeed, 634 14 F.3d at 211-12. Tweed is not such an airport. On the contrary, the FAA’s 15 involvement with Tweed and its runway project has been direct and significant. 16 The Airport is federally regulated and exists within the Tweed-New Haven 17 Airport Layout Plan (“ALP”), which is approved by the FAA. The FAA 21 17-3481-cv (L) Tweed-New Haven Airport Authority v. Tong 1 maintains full control over any modification to the ALP, including runway 2 length. The Airport is classified by the FAA as a primary commercial service 3 airport and is required to hold an operating certificate under FAA regulation 14 4 C.F.R. Part 139. A Master Plan is required of all Part 139 airports, and Tweed’s 5 Master Plan, which includes extending the length of the runway up to 7,200 feet, 6 was approved by the FAA as far back as 2002. This level of federal interest and 7 involvement is further indication that the Runway Statute is preempted. 8 In response to all of this, the State maintains that implied preemption is not 9 warranted because the Runway Statute “does not prevent Tweed from complying 10 with any federally-mandated safety standards.” Appellee’s Br. at 56-57. But the 11 State confuses different branches of implied preemption law: conflict preemption 12 and field preemption. Conflict preemption exists when a state law “actually 13 conflicts with federal law,” English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990), in other 14 words, where “state law stands as an obstacle to the accomplishment” of 15 Congress’s intent, Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 16 713 (1985). This case involves field preemption, not conflict preemption. Field 17 preemption exists where “Congress intended the Federal Government to occupy 22 17-3481-cv (L) Tweed-New Haven Airport Authority v. Tong 1 [a field] exclusively.” Air Transp. Ass’n, 520 F.3d at 220. And as we have seen, 2 Congress intended the FAAct to occupy the entire field of air safety including 3 runway length. 4 The State next asserts that the FAAct does not preempt the Runway Statute 5 because here, unlike in Tweed I, no federal mandate requires that Tweed extend its 6 runway. See Appellee’s Br. at 58. This characterization misses the point. 7 Preemption analysis does not turn on whether the airline safety activity is 8 mandated by the federal government; the dispositive question is whether the 9 Runway Statute intrudes into the field of air safety. We conclude that it does and 10 does so directly. For these reasons, we hold that the Runway Statute is preempted 11 by the FAAct. 12 13 14 CONCLUSION The judgment of the lower court is REVERSED and the case is REMANDED for entry of judgment in favor of Tweed. 23

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued October 8, 2020 Decided January 19, 2021 No. 19-1140 AMERICAN LUNG ASSOCIATION AND AMERICAN PUBLIC HEALTH ASSOCIATION, PETITIONERS v. ENVIRONMENTAL PROTECTION AGENCY AND ANDREW WHEELER, ADMINISTRATOR, RESPONDENTS AEP GENERATING COMPANY, ET AL., INTERVENORS Consolidated with 19-1165, 19-1166, 19-1173, 19-1175, 19-1176, 19-1177, 19-1179, 19-1185, 19-1186, 19-1187, 19-1188 On Petitions for Review of a Final Action of the Environmental Protection Agency Steven C. Wu, Deputy Solicitor General, Office of the Attorney General for the State of New York, argued the cause for the State and Municipal petitioners and intervenor Nevada. 2 With him on the briefs were Letitia James, Attorney General, Barbara D. Underwood, Solicitor General, Matthew W. Grieco, Assistant Solicitor General, Michael J. Myers, Senior Counsel, Andrew G. Frank, Assistant Attorney General of Counsel, Xavier Becerra, Attorney General, Office of the Attorney General for the State of California, Robert W. Byrne, Senior Assistant Attorney General, David A. Zonana, Supervising Deputy Attorney General, Jonathan A. Wiener, M. Elaine Meckenstock, Timothy E. Sullivan, Elizabeth B. Rumsey, and Theodore A.B. McCombs, Deputy Attorneys General, William Tong, Attorney General, Office of the Attorney General for the State of Connecticut, Matthew I. Levine and Scott N. Koschwitz, Assistant Attorneys General, Kathleen Jennings, Attorney General, Office of the Attorney General for the State of Delaware, Valerie S. Edge, Deputy Attorney General, Philip J. Weiser, Attorney General, Office of the Attorney General for the State of Colorado, Eric R. Olson, Solicitor General, Robyn L. Wille, Senior Assistant Attorney General, Clare E. Connors, Attorney General, Office of the Attorney General for the State of Hawaii, William F. Cooper, Deputy Attorney General, Aaron M. Frey, Attorney General, Office of the Attorney General for the State of Maine, Laura E. Jensen, Assistant Attorney General, Brian E. Frosh, Attorney General, Office of the Attorney General for the State of Maryland, John B. Howard, Jr., Joshua M. Segal, and Steven J. Goldstein, Special Assistant Attorneys General, Maura Healey, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Melissa A. Hoffer and Christophe Courchesne, Assistant Attorneys General, Megan M. Herzog and David S. Frankel, Special Assistant Attorneys General, Dana Nessel, Attorney General, Office of the Attorney General for the State of Michigan, Gillian E. Wener, Assistant Attorney General, Keith Ellison, Attorney General, Office of the Attorney General for the State of Minnesota, Peter N. Surdo, Special Assistant Attorney 3 General, Aaron D. Ford, Attorney General, Office of the Attorney General for the State of Nevada, Heidi Parry Stern, Solicitor General, Gurbir S. Grewal, Attorney General, Office of the Attorney General for the State of New Jersey, Lisa J. Morelli, Deputy Attorney General, Hector Balderas, Attorney General, Office of the Attorney General for the State of New Mexico, Tania Maestas, Chief Deputy Attorney General, Joshua H. Stein, Attorney General, Office of the Attorney General for the State of North Carolina, Asher Spiller, Assistant Attorney General, Ellen F. Rosenblum, Attorney General, Office of the Attorney General for the State of Oregon, Paul Garrahan, Attorney-in-Charge, Steve Novick, Special Assistant Attorney General, Josh Shapiro, Attorney General, Office of the Attorney General for the Commonwealth of Pennsylvania, Ann R. Johnston, Senior Deputy Attorney General, Aimee D. Thomson, Deputy Attorney General, Peter F. Neronha, Attorney General, Office of the Attorney General for the State of Rhode Island, Gregory S. Schultz, Special Assistant Attorney General, Thomas J. Donovan, Jr., Attorney General, Office of the Attorney General for the State of Vermont, Nicholas F. Persampieri, Assistant Attorney General, Mark Herring, Attorney General, Office of the Attorney General for the Commonwealth of Virginia, Donald D. Anderson, Deputy Attorney General, Paul Kugelman, Jr., Senior Assistant Attorney General and Chief, Environmental Section, Caitlin Colleen Graham O=Dwyer, Assistant Attorney General, Robert W. Ferguson, Attorney General, Office of the Attorney General for the State of Washington, Christopher H. Reitz and Emily C. Nelson, Assistant Attorneys General, Joshua L. Kaul, Attorney General, Office of the Attorney General for the State of Wisconsin, Gabe Johnson-Karp, Assistant Attorney General, Karl A. Racine, Attorney General, Office of the Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Tom Carr, City Attorney, Office of the City 4 Attorney for the City of Boulder, Debra S. Kalish, Senior Counsel, Mark A. Flessner, Corporation Counsel, Office of the Corporation Counsel for the City of Chicago, Benna Ruth Solomon, Deputy Corporation Counsel, Jared Policicchio, Supervising Assistant Corporation Counsel, Kristin M. Bronson, City Attorney, Office of the City Attorney for the City and County of Denver, Lindsay S. Carder and Edward J. Gorman, Assistant City Attorneys, Michael N. Feuer, City Attorney, Office of the City Attorney for the City of Los Angeles, Michael J. Bostrom, Assistant City Attorney, James E. Johnson, Corporation Counsel, New York City Law Department, Christopher G. King, Senior Counsel, Marcel S. Pratt, City Solicitor, City of Philadelphia Law Department, Scott J. Schwarz and Patrick K. O’Neill, Divisional Deputy City Solicitors, and Thomas F. Pepe, City Attorney, City of South Miami. Morgan A. Costello and Brian M. Lusignan, Assistant Attorneys General, Office of the Attorney General for the State of New York, Gavin G. McGabe, Deputy Attorney General, Anne Minard, Special Assistant Attorney General, Office of the Attorney General for the State of New Mexico, Cynthia M. Weisz, Assistant Attorney General, Office of the Attorney General for the State of Maryland, entered appearances. Kevin Poloncarz argued the cause for Power Company Petitioners. With him on the briefs were Donald L. Ristow and Jake Levine. Mark W. DeLaquil argued the cause for Coal Industry Petitioners. With him on the briefs were Shay Dvoretzky, Charles T. Wehland, Jeffery D. Ubersax, Robert D. Cheren, and Andrew Grossman. 5 Theodore Hadzi-Antich argued the cause for Robinson Enterprises Petitioners. With him on the briefs were Robert Henneke and Ryan D. Walters. Sean H. Donahue and Michael J. Myers argued the causes for Public Health and Environmental Petitioners. On the briefs were Ann Brewster Weeks, James P. Duffy, Susannah L. Weaver, Joanne Spalding, Andres Restrepo, Vera Pardee, Clare Lakewood, Howard M. Crystal, Elizabeth Jones, Brittany E. Wright, Jon A. Mueller, David Doniger, Benjamin Longstreth, Melissa J. Lynch, Lucas May, Vickie L. Patton, Tomas Carbonell, Benjamin Levitan, Howard Learner, and Scott Strand. Alejandra Nunez entered an appearance. David M. Williamson argued the cause and filed the briefs for Biogenic Petitioners. Gene Grace, Jeff Dennis, and Rick Umoff were on the brief for petitioners American Wind Energy Association, et al. Theodore E. Lamm and Sean B. Hecht were on the brief for amicus curiae Thomas C. Jorling in support of petitioners. Gabriel Pacyniak, Brent Chapman, and Graciela Esquivel were on the brief for amici curiae the Coalition to Protect America=s National Parks and the National Parks Conservation Association in support of petitioners. Deborah A. Sivas and Matthew J. Sanders were on the brief for amici curiae Administrative Law Professors in support of petitioners. Hope M. Babcock was on the brief for amici curiae the American Thoracic Society, et al. in support of petitioners. 6 Richard L. Revesz and Jack Lienke were on the brief for amicus curiae the Institute for Policy Integrity at New York University School of Law in support of petitioners. Steph Tai was on the brief for amici curiae Climate Scientists in support of petitioners. Michael Burger and Collyn Peddie were on the brief for amici curiae the National League of Cities, et al. in support of petitioners. Keri R. Steffes was on the brief for amici curiae Faith Organizations in support of petitioners. Shaun A. Goho was on the brief for amici curiae Maximilian Auffhammer, et al. in support of petitioners. Ethan G. Shenkman and Stephen K. Wirth were on the brief for amici curiae Patagonia Works and Columbia Sportswear Company in support of petitioners. Mark Norman Templeton, Robert Adam Weinstock, Alexander Valdes, and Benjamin Nickerson were on the brief for amicus curiae Professor Michael Greenstone in support of petitioners. Nicole G. Berner and Renee M. Gerni were on the brief for amicus curiae the Service Employees International Union in support of petitioners. Elizabeth B. Wydra, and Brianne J. Gorod were on the brief for amici curiae Members of Congress in support of petitioners. 7 Jonas J. Monast was on the brief for amici curiae Energy Modelers in support of petitioners. Katherine Konschnik was on the brief for amici curiae Former Commissioners of the Federal Energy Regulatory Commission in support of petitioners. Michael Landis, Elizabeth S. Merritt, and Wyatt G. Sassman were on the brief for amici curiae Environment America and National Trust for Historic Preservation in support of petitioners. Cara A. Horowitz was on the brief for amici curiae Grid Experts in support of petitioners. Eric Alan Isaacson was on the brief for amici curiae U.S. Senators in support of petitioners. Jonathan D. Brightbill, Principal Deputy Assistant Attorney General, U.S. Department of Justice, and Meghan E. Greenfield and Benjamin Carlisle, Attorneys, argued the causes for respondents. With them on the brief was Jeffrey Bossert Clark, Assistant Attorney General. Lindsay S. See, Solicitor General, Office of the Attorney General for the State of West Virginia, argued the cause for State and Industry intervenors in support of respondents regarding Affordable Clean Energy Rule. With her on the brief were Patrick Morrisey, Attorney General, Thomas T. Lampman, Assistant Solicitors General, Thomas A. Lorenzen, Elizabeth B. Dawson, Rae Cronmiller, Kevin G. Clarkson, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Alaska, Clyde Sniffen Jr., Attorney General, Leslie Rutledge, Attorney General, Office of the Attorney General for the State of Arkansas, Nicholas J. 8 Bronni, Solicitor General, Vincent M. Wagner, Deputy Solicitor General, Dylan L. Jacobs, Assistant Solicitor General, Steve Marshall, Attorney General, Office of the Attorney General for the State of Alabama, Edmund G. LaCour, Jr., Solicitor General, Christopher M. Carr, Attorney General, Office of the Attorney General for the State of Georgia, Andrew A. Pinson, Solicitor General, Derek Schmidt, Attorney General, Office of the Attorney General for the State of Kansas, Jeffrey A. Chanay, Chief Deputy Attorney General, Curtis T. Hill, Jr., Attorney General, Office of the Attorney General of Indiana, Thomas M. Fisher, Solicitor General, Andrew Beshear, Governor, Office of the Governor for the Commonwealth of Kentucky, S. Travis Mayo, Chief Deputy General Counsel, Taylor Payne, Deputy General Counsel, Joseph A. Newberg, Deputy General Counsel and Deputy Executive Director, Jeff Landry, Attorney General, Office of the Attorney General for the State of Louisiana, Elizabeth B. Murrill, Solicitor General, Harry J. Vorhoff, Assistant Attorney General, Eric S. Schmitt, Attorney General, Office of the Attorney General for the State of Missouri, D. John Sauer, Solicitor General, Julie Marie Blake, Deputy Solicitor General, Timothy C. Fox, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Montana, Matthew T. Cochenour, Deputy Solicitor General, Wayne Stenehjem, Attorney General, Office of the Attorney General for the State of North Dakota, Paul M. Seby, Special Assistant Attorney General, Douglas J. Peterson, Attorney General, Office of the Attorney General for the State of Nebraska, Justin D. Lavene, Assistant Attorney General, Dave Yost, Attorney General, Office of the Attorney General of the State of Ohio, Benjamin M. Flowers, Solicitor General, Cameron F. Simmons, Principal Assistant Attorney General, Mike Hunter, Attorney General, Office of the Attorney General for the State of Oklahoma, Mithun Mansinghani, Solicitor General, Jason R. Ravnsborg, Attorney General, Office of the Attorney 9 General for the State of South Dakota, Steven R. Blair, Assistant Attorney General, Alan Wilson, Attorney General, Office of the Attorney General for the State of South Carolina, James Emory Smith, Jr., Deputy Solicitor General, Ken Paxton, Attorney General, Office of the Attorney General for the State of Texas, Kyle D. Hawkins, Solicitor General, Sean Reyes, Attorney General, Office of the Attorney General for the State of Utah, Tyler R. Green, Solicitor General, Bridget Hill, Attorney General, Office of the Attorney General for the State of Wyoming, James Kaste, Deputy Attorney General, Todd E. Palmer, William D. Booth, Obianuju Okasi, Carroll W. McGuffey, III, Misha Tseytlin, C. Grady Moore, III, Julia Barber, F. William Brownell, Elbert Lin, Allison D. Wood, Scott A. Keller, Jeffrey H. Wood, Jeremy Evan Maltz, Steven P. Lehotsky, Michael B. Schon, Emily Church Schilling, Kristina R. Van Bockern, David M. Flannery, Kathy G. Beckett, Edward L. Kropp, Amy M. Smith, Janet J. Henry, Melissa Horne, Angela Jean Levin, Eugene M. Trisko, John A. Rego, Reed W. Sirak, Michael A. Zody, Jacob Santini, Robert D. Cheren, Mark W. DeLaquil, and Andrew M. Grossman. C. Frederick Beckner, III, James R. Bedell, Margaret C. Campbell, Erik D. Lange, and John D. Lazzaretti entered an appearance. James P. Duffy argued the cause for Public Health and Environmental Intervenors in support of respondents. With him on the brief were Ann Brewster Weeks, Sean H. Donahue, Susannah L. Weaver, Joanne Spalding, Andres Restrepo, Vera Pardee, Clare Lakewood, Elizabeth Jones, Brittany E. Wright, Jon A. Mueller, David Doniger, Benjamin Longstreth, Melissa J. Lynch, Lucas May, Vickie L. Patton, Tomas Carbonell, Benjamin Levitan, Howard Learner, and Scott Strand. Letitia James, Attorney General, Office of the Attorney General for the State of New York, Michael J. Myers, Senior Counsel, Brian Lusignan, Assistant Attorney General of 10 Counsel, Barbara D. Underwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, Matthew W. Grieco, Assistant Solicitor General, Xavier Becerra, Attorney General, Office of the Attorney General for the State of California, Robert W. Byrne, Senior Assistant Attorney General, David A. Zonana, Supervising Deputy Attorney General, Jonathan A. Wiener, M. Elaine Meckenstock, Timothy E. Sullivan, Elizabeth B. Rumsey, and Theodore A.B. McCombs, Deputy Attorneys General, William Tong, Attorney General, Office of the Attorney General for the State of Connecticut, Matthew I. Levine and Scott N. Koschwitz, Assistant Attorneys General, Kathleen Jennings, Attorney General, Office of the Attorney General for the State of Delaware, Valerie S. Edge, Deputy Attorney General, Philip J. Weiser, Attorney General, Office of the Attorney General for the State of Colorado, Eric R. Olson, Solicitor General, Robyn L. Wille, Senior Assistant Attorney General, Clare E. Connors, Attorney General, Office of the Attorney General for the State of Hawaii, William F. Cooper, Deputy Attorney General, Aaron M. Frey, Attorney General, Office of the Attorney General for the State of Maine, Laura E. Jensen, Assistant Attorney General, Brian E. Frosh, Attorney General, Office of the Attorney General for the State of Maryland, John B. Howard, Jr., Joshua M. Segal, and Steven J. Goldstein, Special Assistant Attorneys General, Maura Healey, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Melissa A. Hoffer and Christophe Courchesne, Assistant Attorneys General, Megan M. Herzog and David S. Frankel, Special Assistant Attorneys General, Dana Nessel, Attorney General, Office of the Attorney General for the State of Michigan, Gillian E. Wener, Assistant Attorney General, Keith Ellison, Attorney General, Office of the Attorney General for the State of Minnesota, Peter N. Surdo, Special Assistant Attorney General, Aaron D. Ford, Attorney General, Office of the Attorney General for the State of Nevada, Heidi Parry Stern, Solicitor General, Gurbir 11 S. Grewal, Attorney General, Office of the Attorney General for the State of New Jersey, Lisa J. Morelli, Deputy Attorney General, Hector Balderas, Attorney General, Office of the Attorney General for the State of New Mexico, Tania Maestas, Chief Deputy Attorney General, Joshua H. Stein, Attorney General, Office of the Attorney General for the State of North Carolina, Asher Spiller, Assistant Attorney General, Ellen F. Rosenblum, Attorney General, Office of the Attorney General for the State of Oregon, Paul Garrahan, Attorney-in-Charge, Steve Novick, Special Assistant Attorney General, Josh Shapiro, Attorney General, Office of the Attorney General for the Commonwealth of Pennsylvania, Ann R. Johnston, Senior Deputy Attorney General, Aimee D. Thomson, Deputy Attorney General, Peter F. Neronha, Attorney General, Office of the Attorney General for the State of Rhode Island, Gregory S. Schultz, Special Assistant Attorney General, Thomas J. Donovan, Jr., Attorney General, Office of the Attorney General for the State of Vermont, Nicholas F. Persampieri, Assistant Attorney General, Mark Herring, Attorney General, Office of the Attorney General for the Commonwealth of Virginia, Donald D. Anderson, Deputy Attorney General, Paul Kugelman, Jr., Senior Assistant Attorney General and Chief, Environmental Section, Caitlin Colleen Graham O=Dwyer, Assistant Attorney General, Robert W. Ferguson, Attorney General, Office of the Attorney General for the State of Washington, Christopher H. Reitz and Emily C. Nelson, Assistant Attorneys General, Karl A. Racine, Attorney General, Office of the Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Tom Carr, City Attorney, Office of the City Attorney for the City of Boulder, Debra S. Kalish, Senior Counsel, Mark A. Flessner, Corporation Counsel, Office of the Corporation Counsel for the City of Chicago, Benna Ruth Solomon, Deputy Corporation Counsel, Jared Policicchio, Supervising Assistant Corporation Counsel, Kristin M. Bronson, City Attorney, Office of the City 12 Attorney for the City and County of Denver, Lindsay S. Carder and Edward J. Gorman, Assistant City Attorneys, Michael N. Feuer, City Attorney, Office of the City Attorney for the City of Los Angeles, Michael J. Bostrom, Assistant City Attorney, James E. Johnson, Corporation Counsel, New York City Law Department, Christopher G. King, Senior Counsel, Marcel S. Pratt, City Solicitor, City of Philadelphia Law Department, Scott J. Schwarz and Patrick K. O’Neill, Divisional Deputy City Solicitors, and Thomas F. Pepe, City Attorney, City of South Miami were on the brief for the State and Municipal Intervenors in support of respondents. Jeremiah Langston, Assistant Attorney General, Office of the Attorney General for the State of Montana, Stephen C. Meredith, Solicitor, Office of the Attorney General for the Commonwealth of Kentucky, Margaret I. Olson, Assistant Attorney General, Office of the Attorney General for the State of North Dakota, and Erik E. Petersen, Assistant Attorney General, Office of the Attorney General for the State of Wyoming, and Robert A. Wolf entered appearances. Patrick Morrisey, Attorney General, Office of the Attorney General for the State of West Virginia, Lindsay S. See, Solicitor General, Thomas T. Lampman, Assistant Solicitor General, Scott A. Keller, Jeffrey H. Wood, Jeremy Evan Maltz, Steven P. Lehotsky, Michael B. Schon, Thomas A. Lorenzen, Elizabeth B. Dawson, Rae Cronmiller, Steve Marshall, Attorney General, Office of the Attorney General for the State of Alabama, Edmund G. LaCour, Jr., Solicitor General, Kevin G. Clarkson, Attorney General, Office of the Attorney General for the State of Alaska at the time the brief was filed, Clyde Sniffen, Jr., Attorney General, Leslie Rutledge, Attorney General, Office of the Attorney General for the State of Arkansas, Nicholas J. Bronni, Solicitor General, Vincent M. Wagner, Deputy Solicitor General, Dylan L. Jacobs, Assistant Solicitor General, Christopher M. Carr, Attorney General, 13 Office of the Attorney General for the State of Georgia, Andrew A. Pinson, Solicitor General, Derek Schmidt, Attorney General, Office of the Attorney General for the State of Kansas, Jeffrey A. Chanay, Chief Deputy Attorney General, Curtis T. Hill, Jr., Attorney General, Office of the Attorney General of Indiana, Thomas M. Fisher, Solicitor General, Andrew Beshear, Governor, Office of the Governor for the Commonwealth of Kentucky, S. Travis Mayo, Chief Deputy General Counsel, Taylor Payne, Deputy General Counsel, Joseph A. Newberg, Deputy General Counsel and Deputy Executive Director, Jeff Landry, Attorney General, Office of the Attorney General for the State of Louisiana, Elizabeth B. Murrill, Solicitor General, Harry J. Vorhoff, Assistant Attorney General, Eric S. Schmitt, Attorney General, Office of the Attorney General for the State of Missouri, D. John Sauer, Solicitor General, Julie Marie Blake, Deputy Solicitor General, Timothy C. Fox, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Montana, Matthew T. Cochenour, Deputy Solicitor General, Wayne Stenehjem, Attorney General, Office of the Attorney General for the State of North Dakota, Paul M. Seby, Special Assistant Attorney General, Douglas J. Peterson, Attorney General, Office of the Attorney General for the State of Nebraska, Justin D. Lavene, Assistant Attorney General, Dave Yost, Attorney General, Office of the Attorney General of the State of Ohio, Benjamin M. Flowers, Solicitor General, Cameron F. Simmons, Principal Assistant Attorney General, Mike Hunter, Attorney General, Office of the Attorney General for the State of Oklahoma, Mithun Mansinghani, Solicitor General, Jason R. Ravnsborg, Attorney General, Office of the Attorney General for the State of South Dakota, Steven R. Blair, Assistant Attorney General, Alan Wilson, Attorney General, Office of the Attorney General for the State of South Carolina, James Emory Smith, Jr., Deputy Solicitor General, Ken Paxton, Attorney General, Office of the Attorney General for 14 the State of Texas, Kyle D. Hawkins, Solicitor General, Sean Reyes, Attorney General, Office of the Attorney General for the State of Utah, Tyler R. Green, Solicitor General, Bridget Hill, Attorney General, Office of the Attorney General for the State of Wyoming, James Kaste, Deputy Attorney General, Todd E. Palmer, William D. Booth, Obianuju Okasi, Carroll W. McGuffey, III, Misha Tseytlin, C. Grady Moore, III, Julia Barber, F. William Brownell, Elbert Lin, Allison D. Wood, Emily Church Schilling, Kristina R. Van Bockern, David M. Flannery, Kathy G. Beckett, Edward L. Kropp, Amy M. Smith, Janet J. Henry, Melissa Horne, Angela Jean Levin, Eugene M. Trisko, John A. Rego, Reed W. Sirak, Michael A. Zody, Jacob Santini, Robert D. Cheren, Mark W. DeLaquil, and Andrew M. Grossman were on the brief for State and Industry Intervenors in support of respondents regarding Clean Power Plan Repeal. Wayne Stenehjem, Attorney General, Office of the Attorney General for the State of North Dakota, and Paul M. Seby, Special Assistant Attorney General, were on the brief for intervenor State of North Dakota in support of the respondents. Jerry Stouck entered an appearance. Thomas J. Ward, Megan H. Berge, and Jared R. Wigginton were on the brief for amicus curiae National Association of Builders in support of respondents. Before: MILLETT , PILLARD , and WALKER, Circuit Judges. Opinion for the Court filed PER CURIAM. Opinion concurring in part, concurring in the judgment in part, and dissenting in part filed by Circuit Judge WALKER. 15 TABLE OF C ONTENTS I. Background .........................................................................17 A. The Clean Air Act ..........................................................17 B. Electricity and Climate Change .....................................21 1. Electricity.....................................................................21 2. Climate Change and the Federal Government ..........24 C. The Clean Power Plan ....................................................29 D. The ACE Rule ................................................................32 1. Repeal of the Clean Power Plan .................................32 2. Best System of Emission Reduction ..........................33 3. Degree of Emission Limitation Achievable ..............36 4. Implementing Regulations..........................................38 E. Petitions for Review .......................................................38 F. Jurisdiction and Standard of Review .............................39 II. Section 7411 .......................................................................40 A. Statutory Context............................................................40 1. Text ..............................................................................46 2. Statutory History, Structure, and Purpose .................59 3. Compliance Measures .................................................71 B. The Major Questions Doctrine ......................................74 1. The EPA’s Regulatory Mandate ................................75 2. Best System of Emission Reduction ..........................80 C. Federalism .......................................................................92 III. The EPA’s Authority to Regulate Carbon Dioxide Emissions Under Section 7411 ..............................................98 A. The Coal Petitioners’ Challenges ..................................98 1. Endangerment Finding................................................99 2. Section 7411 and Section 7412’s Parallel Operation...................................................... 111 B. The Robinson Petitioners’ Challenges ....................... 132 IV. Amendments to the Implementing Regulations ...... 138 V. Vacatur and Remand .................................................... 146 VI. Conclusion ..................................................................... 147 16 As the Supreme Court recognized nearly fourteen years ago, climate change has been called “the most pressing environmental challenge of our time.” Massachusetts v. EPA, 549 U.S. 497, 505 (2007) (formatting modified). Soon thereafter, the United States government determined that greenhouse gas emissions are polluting our atmosphere and causing significant and harmful effects on the human environment. Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act (2009 Endangerment Finding), 74 Fed. Reg. 66,496, 66,497–66,499 (Dec. 15, 2009). And both Republican and Democratic administrations have agreed: Power plants burning fossil fuels like coal “are far and away” the largest stationary source of greenhouse gases and, indeed, their role in greenhouse gas emissions “dwarf[s] other categories[.]” EPA Br. 169; see also Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units (New Source Rule), 80 Fed. Reg. 64,510, 64,522 (Oct. 23, 2015) (fossil-fuel-fired power plants are “by far the largest emitters” of greenhouse gases). The question in this case is whether the Environmental Protection Agency (EPA) acted lawfully in adopting the 2019 Affordable Clean Energy Rule (ACE Rule), 84 Fed. Reg. 32,520 (July 8, 2019), as a means of regulating power plants’ emissions of greenhouse gases. It did not. Although the EPA has the legal authority to adopt rules regulating those emissions, the central operative terms of the ACE Rule and the repeal of its predecessor rule, the Clean Power Plan, 80 Fed. Reg. 64,662 (Oct. 23, 2015), hinged on a fundamental misconstruction of Section 7411(d) of the Clean Air Act. In addition, the ACE Rule’s amendment of the regulatory framework to slow the process for reduction of emissions is arbitrary and capricious. For those reasons, the ACE Rule is 17 vacated, and the record is remanded to the EPA for further proceedings consistent with this opinion. I. BACKGROUND A. T HE C LEAN AIR ACT In 1963, Congress passed the Clean Air Act, 42 U.S.C. § 7401 et seq., “to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population[,]” id. § 7401(b)(1). Animating the Act was Congress’ finding that “growth in the amount and complexity of air pollution brought about by urbanization, industrial development, and the increasing use of motor vehicles[] has resulted in mounting dangers to the public health and welfare[.]” Id. § 7401(a)(2). Section 111 of the Clean Air Act, which was added in 1970 and codified at 42 U.S.C. § 7411, directs the EPA to regulate any new and existing stationary sources of air pollutants that “cause[], or contribute[] significantly to, air pollution” and that “may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 7411(b)(1)(A); see id. § 7411(d), (f) (providing that the EPA Administrator “shall” regulate existing and new sources of air pollution). A “stationary source” is a source of air pollution that cannot move, such as a power plant. See id. § 7411(a)(3) (defining “stationary source” as “any building, structure, facility, or installation which emits or may emit any air pollutant[]”). An example of a common nonstationary source of air pollution is a gas-powered motor vehicle. See Utility Air Regulatory Group v. EPA (UARG), 573 U.S. 302, 308 (2014). Within 90 days of the enactment of Section 7411, the EPA Administrator was to promulgate a list of stationary source categories that “cause[], or contribute[] significantly to, air 18 pollution[.]” 42 U.S.C. § 7411(b)(1)(A). In 1971, the Administrator included fossil-fuel-fired steam-generating power plants on that list. Air Pollution Prevention and Control: List of Categories of Stationary Sources, 36 Fed. Reg. 5,931 (March 31, 1971); see also New Source Rule, 80 Fed. Reg. at 64,527–64,528. Today’s power plants fall in that same category. ACE Rule, 84 Fed. Reg. at 32,557 n.250. Once a stationary source category is listed, the Administrator must promulgate federal “standards of performance” for all newly constructed sources in the category. 42 U.S.C. § 7411(b)(1)(B). The Act defines a “standard of performance” as a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated. Id. § 7411(a)(1). Once such a new source regulation is promulgated, the Administrator also must issue emission guidelines for alreadyexisting stationary sources within that same source category. 42 U.S.C. § 7411(d)(1)(A)(ii); see also American Elec. Power Co., Inc. v. Connecticut (AEP), 564 U.S. 410, 424 (2011). While the new source standards are promulgated and enforced entirely by the EPA, the Clean Air Act prescribes a process of cooperative federalism for the regulation of existing sources. Under that structure, the statute delineates three distinct regulatory steps involving three sets of actors—the 19 EPA, the States, and regulated industry—each of which has a flexible role in choosing how to comply. See 42 U.S.C. § 7411(a)(1), (d). This allows each State to work with the stationary sources within its jurisdiction to devise a plan for meeting the federally promulgated quantitative guideline for emissions. See id. § 7411(d). The process starts with the EPA first applying its expertise to determine “the degree of emission limitation achievable through the application of the best system of emission reduction” that “has been adequately demonstrated.” 42 U.S.C. § 7411(a)(1); see 40 C.F.R. § 60.22a. That system must “tak[e] into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements[.]” 42 U.S.C. § 7411(a)(1). Once the Administrator identifies the best system of emission reduction, she then determines the amount of emission reduction that existing sources should be able to achieve based on the application of that system and adopts corresponding emission guidelines. Id.; see also, e.g., ACE Rule, 84 Fed. Reg. at 32,523; Clean Power Plan, 80 Fed. Reg. at 64,719. Each State then submits to the EPA a plan that (i) establishes standards of performance for that State’s existing stationary sources’ air pollutants (excepting pollutants already subject to separate federal emissions standards), and (ii) “provides for the implementation and enforcement of such standards of performance[]” by the State. 42 U.S.C. § 7411(d)(1); see 40 C.F.R. § 60.23a. The standards of performance must “reflect[]” the emission t