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Editor’s note: This piece from the SCOV Law Blog is by Andrew Higley.

Everyone knows the old saying “you can’t fight city hall.” Well, in this case, it seems to be that you can’t fight the federal government, either. The outcome of this case is certainly one of those that leave non-lawyers scratching their heads. How can there be no remedy for such an intrusive, apparently “ear-splitting” harm? The case takes place in the context of an ongoing battle between the City of Burlington and local residents over the placement of F-35A airplanes at the Air National Guard base adjacent to the Burlington International Airport, and the noise pollution they create.

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The Vermont Air National Guard occupies the base adjacent to Burlington International Airport. However, the United States Air Force leases from the City of Burlington the land itself. The current lease extends to June 2048. The city has an Act 250 land-use permit for an airport hanger, facilities, and runway.

In December 2013, USAF decided to base 18 large F-35A aircraft at the Vermont Air National Guard base in 2020. The Guard and USAF share the runway to the airport with civilian and commercial airplanes. Although a number of Act 250 permits relate to the runway, there were no proposed structural changes to the runway. However, there were proposed structural changes to other parts of the base in order to accommodate the arrival of the F-35As.

This is where the litigation kicks in. Appellants, a group of local residents near the base, used a section of Act 250 that allows “any person” to request a judicial opinion from the district environmental coordinator concerning whether Act 250 applies to an activity “that might constitute development.” The district coordinator looked at the proposed developments to accommodate the F-35As, and said, no. Because these accommodations are for a federal purpose, Act 250 does not apply.

That decision was appealed to the Environmental Division, who on a motion for summary judgment from the city, affirmed the decision of the district coordinator and concluded no permit was required. The appellants appealed again to SCOV, who reviews the Environmental Division’s legal decisions “de novo.” (Meaning, as frequent readers know, “like new.” SCOV does not have to afford any deference to the legal conclusions of the Environmental Division.)

The appellants presented a couple different arguments to SCOV. First, placing the F-35As at the site and the necessary changes to the base constituted “land development” under Act 250. Second, either that this change is a “substantial change” requiring a new permit, or that it is a “material change” requiring an amended permit. If the words “substantial” and “material” sound like the same thing to you, that’s because they pretty much are.

Tackling the appellant’s first argument, SCOV begins by simply looking to the definition of “development” in Act 250: The “construction of improvements on a tract of land involving more than 10 acres that is used for municipal, county, or state purposes.”

VTDigger is underwritten by: Even though Guard members may fly and train on these planes, that alone is not enough to convert it to a state purpose. Put another way, even though the federal government may let you play with your toys, they’re still the federal government’s toys.

SCOV narrows in on the term “state purpose” in the statute, and therein lies the largest problem with the appellants’ case. The Natural Resource Board, or the “NRB” as SCOV refers to it, has promulgated rules for Act 250.

This happens quite frequently at both the state and federal levels; the Legislature doesn’t define every term in a statute, so they pass off the task to some agency (maybe the Legislature’s way of saying “we don’t know what we’re doing,” so we’ll give the work to someone who does).

Anyway, the rule defines a state purpose as a project “undertaken by the state,” and used by the state. That provides SCOV some pretty clear guidelines for its analysis.

First, the federal government, through an act of Congress, initiated the F-35A program. Second, the federal government finances it. Third, the federal government completed its own environmental impact statement before choosing the Burlington airport. Fourth, the Guard base is leased by the federal government. And finally, the stated purpose of the F-35A program is to train and prepare members of the U.S. Air Force.

Open and shut then? Not quite. There wouldn’t be a case unless some creative argument got us here, and the appellants certainly have one. They argue there is a state purpose because Congress, at any time, may call upon the state militias (such the Vermont National Guard) to serve federal interests. They cite a clause from the U.S. Constitution, specifically authorizing Congress to “call forth” a state militia into federal service. However, under this clause, Guard members are under the control of the state Guard while in federal service. And here, Vermont Guard members will be trained to fly the F-35As. Also, going even further, they argue that if the purpose of the F-35A program is to protect the entire nation, then the program’s purpose is also to protect the people of Vermont. Thus, a state purpose.

Interesting arguments, but SCOV rejects them. SCOV first notes that both prongs of the NRB rule must be satisfied: the program must be (1) undertaken by the state, and (2) used by the state. Neither is the case here. For the reasons cited above, it was clearly the federal government who founded, funded, and implemented the program. Next, the program is not used by the state because the USAF, and not the Vermont National Guard, will be using the F-35As for international missions and to protect the homeland.

Specifically addressing the appellants’ first argument, SCOV notes that the purpose of the program is not contingent on the status of the pilots. Meaning, even though Guard members may fly and train on these planes, that alone is not enough to convert it to a state purpose. Put another way, even though the federal government may let you play with your toys, they’re still the federal government’s toys. SCOV easily rejects the Appellants’ second argument — that because the F-35A defends the entire nation, including Vermont, there is a state purpose—because that reasoning would transform all federal purposes into state purposes.

Next, SCOV must address whether there is a substantial change to a pre-existing condition requiring a permit. Act 250 does not apply to improvements constructed before June 1, 1970. But, if there is a “substantial change,” an Act 250 permit is required. The appellants cite the proposed building alterations to house the F-35A as such a change. However, under the those pesky NRB agency rules, any “improvement” must meet the same definition as a “development” under Act 250 for the rule to apply. As we already know, a development must be for a “state purpose,” and therefore this argument fails as well.

Finally, SCOV addresses the argument that the additional noise caused by the F-35As to the runway (which has an existing Act 250 permit) amounts to a “material change” requiring an amendment to that permit. The standard for what constitutes a “material change” is basically the same as what constitutes a “substantial change.” The drafters of Act 250 wanted to use different words, of course, just to confuse you. A material change is one that is a “cognizable change that will have a significant impact on a finding or condition or may result in significant impact on a finding or condition or may result in significant adverse impact on any of the Act 250 criteria.” Speaking of noise pollution and jet planes …

SCOV strikes this argument down as well, although on different grounds. SCOV accepts, for sake of argument, that such an increase in the amount of noise would qualify as a “material change” for Act 250 purposes. However, the whole federal government thing gets in the way again. This time, SCOV dismisses the argument based on a legal doctrine known as preemption. Basically, the doctrine states that federal law is supreme law of the land, and any state law or regulation to the contrary, or that gets in the way, is invalid. The states cannot negate or dismiss federal law (despite the views of Thomas Jefferson).

Here, SCOV relies on “field preemption,” meaning that the federal government has occupied an entire “field,” and thus there is an implication that Congress did not intend for the states to take part in regulation of that “field.” (The legal equivalent of there being “too many cooks in the kitchen,” so the state cooks need to get out.) Noise as a result of aviation is regulated by the Federal Aviation Administration (FAA). The U.S. Supreme Court has formerly addressed this issue, and stated that given the “pervasive control” that Congress had granted to the FAA, Congress “left no room for local or state control of noise.” In other words, Congress has occupied the entire field of aircraft noise regulation. Appellants counter-argue that that case left open the possibility that states can still put restrictions on airports through land use regulations, as long as it does not regulate noise. SCOV easily rejects this argument, as requiring an amended Act 250 permit, based on the increase in noise, is clearly a direct regulation of noise.

Based on the above reasons, SCOV affirms the decision of the environmental court.

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So the appellants will continue to suffer a harm without any redress? Not so fast, writes Justice Morse in a concurring opinion (an opinion that agrees in the result, or holding, but where a justice wants to add his or her two cents). His opinion starts by arguing that the majority “largely disregards” the “overpowering assault on the senses produced by the F-35A aircraft.” Essentially, for a noise this loud and this objectionable, there has to be some recourse.

He first agrees that federal law, and preemption principles, does in fact prohibit direct state control of noise generated by the aircraft. However, the concurrence argues that federal preemption principles do not prohibit “common law” lawsuits against airports based on a public nuisance cause of action. A public nuisance is an activity that represents an “unreasonable interference with a right common to the general public.”

Here, the concurrence identifies that “right” as the “right … to be free from the assault of ear-splitting noise generated by jet aircraft.” It is not a “regulation” of the noise because the plaintiffs can only pursue monetary damages for the nuisance. The concurrence foreshadows, perhaps, the next phase of litigation in this matter.

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