We blogged last week about the “battle” between the City and State over control and ownership of the Charlotte Douglas International Airport. That prior post is available here.
The FAA has now sent a letter, viewable here, both to the North Carolina Attorney General and the Charlotte City Manager weighing in on the dispute. The letter states that the FAA has “several concerns about [the new law], including whether it conforms to Federal law” and confesses confusion about, essentially, the responsible party for the airport–the City or the newly-created Airport Authority. The letter then requests that the Attorney General “provide a legal opinion opining on who is the airport sponsor within the meaning of [the new law], and the entity empowered to enter into a Federal grant agreement under the laws of the State of North Carolina.”
The letter concludes with the following, um, guidance to the Attorney General:
Generally speaking, legislation establishing entities responsible for airport operations must be consistent with applicable Federal law under the doctrine of Federal pre-emption where applicable. As the parties move forward with constructing the governance and administration function of the airport operator, FAA cautions parties to ensure all directives identified in the legislation, whether specifically, inferred, or assumed, shall be executed by the airport operator in accordance with Federal statute, law, regulations, and policy.
We call it “um, guidance” because it seems to us like the FAA is telling the Attorney General that there is no real way as the new law is currently written that it will survive legal challenge. And, while the Superior Court issued an injunction expressly doubting the “likelihood of success” by the City on the pre-emption issue, the injunction viewable here, the FAA has now breathed new life into that argument. The FAA’s guidance may, in fact, be the City’s best hope of defeating the new law, and it may be that we’ll see the City’s next lawsuit (assuming it files a new suit) in Federal court.
We’ll see. All we know is that the FAA’s letter is dated July 29, and the General Assembly is now done such that modification will have to wait.
Mike Thelen practices in Womble, Carlyle’s Real Estate Litigation and Land Use practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development matters in both state and federal venues throughout North Carolina. Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw.
Categories: Municipal Laws