376 F.3d 187 | 3rd Cir. | 2004
(D.C. No. 97-cv-00093E) BECKER, Circuit Judges. LEATHERWOOD, INC. (Opinion Filed: July 21, 2004)
v. William F. Fox, Jr., Esq. (argued) J.P. Mascaro & Sons THE PENNSYLVANIA 320 Godshall Drive DEPARTMENT OF Hurleysville, PA 19438 ENVIRONMENTAL Attorney for Appellant
PROTECTION; JEFFERSON
Teal Luthy Miller, Esq. (argued) declaratory judgment Eagle sought. Scott R. McIntosh, Esq. United States Department of Justice I. 601 D Street N.W. Washington, DC 20530 For some time now, Eagle has Attorney for Appellee Federal desired to develop a solid waste disposal Aviation Administration and Marion facility on land that it owns in Jefferson Blakey County. The facility, which is located
approximately 5.25 miles from the Dubois- Robert P. Ging, Jr., Esq. (argued) Jefferson County Airport, was intended to 2095 Humbert Road accept municipal waste primarily from out- Confluence, PA 15424 of-state producers. In the early 1990s, Attorney for Appellees Jefferson Eagle began to apply to the Pennsylvania City and Township of Pine Creek Department of Environmental Protection
(hereinafter “DEP”) for permits that were needed to operate the facility, and the DEP issued all of the permits that were
OPINION OF THE COURT required. See Khodara Envtl., ex rel. Eagle Envtl. v. Beckman, 237 F.3d 186, 189 & n.1 (3d Cir. 2001)(“Khodara I”).
ALITO, Circuit Judge: After receiving these permits, Eagle took steps to develop the facility, including
Khodara Environmental, Inc., the obtaining engineering studies of the site, general partner of a company (Eagle installing 12 groundwater monitoring Environmental, L.P.) that wishes to
wells, beginning work on an access road, develop the “Happy Landing Landfill” in and installing a perimeter silt fence. Jefferson County, Pennsylvania, contests the District Court’s denial of its request for
In September 1996, however, the a declaratory judgment that the Wendell H. Pennsylvania Fish and Boat Commission Ford Aviation Investment and Reform Act designated three tributaries near the for the 21st Century (“the Wendell Ford landfill site as wild trout streams. As a Act”) does not prohibit the landfill. The result, the DEP determined that wetlands Federal Aviation Administration (“FAA”),
in and around Happy Landing Landfill Jefferson County, and Pine Creek were of such an exceptional value that they Township argue that the Wendell Ford Act should not be filled. Shortly thereafter, the does prohibit the landfill. In addition, the
DEP revoked authorization to fill in any FAA argues that Khodara and Eagle wetlands and suspended the other permits. (hereinafter collectively “Eagle”) lack Eagle appealed to the Environmental Article III standing and that their claim is
Hearing Board. While the appeal was not ripe. For the reasons stated below, we pending, Eagle and the DEP entered into a reverse and remand for the entry of the consent order and agreement that released aircraft flying at low altitudes, the FAA the bonds that Eagle had submitted in the regulates the development of landfills near process of obtaining one of its permits. In airports. It appears that the Happy exchange, Eagle agreed not to construct or Landing Landfill site was permitted by the operate the landfill until that permit was FAA regulations in effect before FARA reinstated and the applicable bonding was enacted, see id. at 189 n. 3, but requirements were met. In September Section 1220 of FARA imposed an 1998, the Environmental Hearing Board additional restriction that applied only issued an administrative order affirming under very narrow circumstances. the DEP’s suspension order. See Eagle Envtl. L.P. v. Commonwealth of Pa. Dep’t Section 1220 provided in relevant of Envtl. Protection, EHB Docket. No. 96- part: 215-MG, 1998 WL 612838 (Pa. Hrg. Bd. Sept. 3, 1998). This decision was affirmed For the purpose of by the Pennsylvania Commonwealth enhancing aviation safety, in Court, see Eagle Envtl. L.P. v. a case in which 2 landfills Commonwealth of Pa. Dep’t of Envtl. have been proposed to be constructed or established Protection, No. 2704 C.D. 1998 (Pa. Commw. Ct. 2001); App. at 122, and the within 6 miles of a DEP’s suspension order became final commercial service airport when the Pennsylvania Supreme Court with fewer than 50,000 denied further review. See Eagle Envtl. emplanements per year no person shall construct or L.P. v. Commonwealth of Pa. Dep’t of Envtl. Protection, 800 A.2d 934 (Pa. establish either landfill if an 2002); App. at 9a. official of the Federal
Aviation Administration has In October 1996, while these state stated in writing within the proceedings were in progress, Congress 3-year period ending on the date of enactment of this e n a c t e d t h e F e d e r a l A v i a t i o n Reauthorization Act of 1996 (“FARA”), subsection that 1 of the Pub. L. No. 104-264, 110 Stat. 3213. l a n d f i l l s w o u l d b e Section 1220 of FARA, which was drafted incompatible with aircraft by two members of the House of operations at the airport, Representatives from the area near the unless the landfill is already Happy Landing Landfill site, was active on such date of apparently “intended to single out Happy enactment or the airport operator agrees to the Landing Landfill for regulation.” See Khodara I, 237 F.3d at 190 n.4. Because c o n s t r u c t i o n o r landfills tend to attract birds and because establishment of the landfill. birds can present a safety problem for 49 U.S.C. § 44718(d) (amended by Pub. L. retrospective effect. Cross-appeals were No. 106-181, § 503(b), 114 Stat. 61, 133 taken to this Court. (2000) (codified at 49 U.S.C. § 44718(d))). While these appeals were pending Since the Dubois-Jefferson County Airport before us, Congress enacted the Wendell was a “commercial service airport with Ford Act, which replaced Section 1220 of fewer than 50,000 emplanements per year” FARA with a new and somewhat broader and since two landfills (Happy Landing provision. Section 503(b) of the Wendell Landfill and one other) had been proposed Ford Act, 49 U.S.C. § 44718(d) provides for construction within six miles of the in pertinent part: airport, Section 1220 was potentially applicable to that airport. Moreover, (1) In general.–No person according to a statement attributed to one shall construct or establish a of the sponsors of this provision, the municipal solid waste DuBois-Jefferson County Airport was the landfill . . . that receives only airport in the country to which putrescible waste . . . within Section 1220 applied. See Khodara I, 237 6 miles of a public airport F.3d at 190 n.4. that has received grants
under chapter 471 and is After FARA was enacted, Eagle primarily served by general commenced this action, seeking, among a v i a t io n a i r c ra f t a nd other things, a declaration that Section regularly scheduled flights 1220 was unconstitutional and that it did of aircraft designed for 60 not apply to the Happy Landing Landfill. passengers or less unless the In March 1999, the District Court granted State aviation agency of the partial summary judgment in favor of State in which the airport is Eagle, holding that Section 1220 failed located requests that the rational-basis review under the Equal Administrator of the Federal Protection Clause. See Khodara Env’t, Aviation Ad ministration Inc. v. Beckman, 91 F. Supp. 2d 827, 850- exempt the landfill from the 57 (W.D. Pa. 1999). Although the Court a p p l i c a t i o n o f t h i s found that the government had a legitimate s u b s e c t i o n a n d t h e interest in preventing aircraft bird strikes, Administrator determines the Court saw no rational justification for that such exemption would the provisions that: (1) limited the ban to have no adverse impact on cases where exactly two landfills had been aviation safety. proposed; (2) restricted the provision to airports with fewer than 50,000 annual ( 2 ) L i m i t a t i o n o n emplanements; (3) c overed only applicability.–Paragraph (1) commercial, and not commuter, airports; . . . shall not apply to the and (4) limited the statute to purely construction, establishment,
expansion, or modification undertaken with respect to, of, or to any other activity a municipal solid waste
landfill if the construction or establishment of the landfill was commenced on or before the date of the e n a c t m e n t o f t h i s subsection.
49 U.S.C. § 44718(d)(1)-(2). In August 2000, the FAA promulgated FAA Advisory Circular 150/5200-34 to provide “guidance on complying” with the Act. For our purposes, the Circular’s most important portions are its definitions of the terms “construction” and “establishment.” The Circular states:
a. Construct a municipal solid waste landfill means excavate or grade land, or raise structures, to prepare a municipal solid waste landfill as permitted by the appropriate regulatory or permitting authority. b. Establish a municipal s o l i d w a s t e l a n d f i l l (MSWLF) means receive the first load or putrescible waste on site for placement in a prepared municipal solid waste landfill.
FAA Advisory Circular 150/5200-34, Appendix 1 (a)-(b) (emphasis in original).
Because of the legal change ripeness arguments but concluded that effected by the Act, we vacated the portion Eagle had not commenced the construction of the District Court’s opinion that had or establishment of the landfill prior to the held that Section 1220 of FARA was enactment of the Wendell Ford Act. On unconstitutional, and we remanded to Eagle’s claim that it was exempt because allow Eagle to file an amended complaint the landfill would not adversely affect addressing the new Act. Khodara I, 237 aviation safety, the Court held that the F.3d at 195, 198. claim was not ripe and therefore dismissed
it without prejudice. The Court also On remand, Eagle filed an amended granted summary judgment against Eagle complaint seeking a declaratory judgment on its constitutional claims. Eagle then to the effect that Section 503(b) of the filed this appeal and argues that its actions Wendell Ford Act does not apply to Happy at Happy Landing Landfill bring it within the grandfather clause. [1] Landing Landfill because, prior to the enactment of that Act, which became law on April 5, 2000, Eagle had commenced II. construction and establishment of the landfill within the meaning of Section We begin by considering the FAA’s 503(b)’s grandfather clause. See 49 argument that Eagle lacks Article III U.S.C. § 44718(d)(2). In the alternative, standing. See Joint Stock Soc’y v. UDV Eagle sought a declaration that it was N. Am., Inc., 266 F.3d 164, 175 (3d Cir. entitled to an exemption under 49 U.S.C. § 2001) (“Constitutional standing is a 44718(d)(1) because the operation of threshold issue that we should address Happy Landing Landfill would not have an before examining issues of prudential adverse impact on aviation safety. Eagle standing and statutory interpretation.”); also sought declarations that the Act was Peachlum v. City of York, 333 F.3d 429, unconstitutional in various respects. 433 (3d Cir. 2003). Eagle, the FAA, and the other defendants all moved for summary judgment. All of “Article III of the Constitution the defendants argued that the Act limits the federal judicial power to ‘Cases’ prohibited the development of Happy or ‘Controversies,’ thereby entailing as an Landing Landfill, and the FAA also argued ‘irreducible minimum’ that there be (1) an that Eagle’s Wendell Ford Act claims were injury in fact, (2) a causal relationship barred for lack of standing and ripeness.
The District Court granted summary [1] Eagle does not seek review judgment for the defendants. On Eagle’s regarding its claim for an exemption claim that it fell within the grandfather under 49 U.S.C. § 44718(d)(1) or its clause in 49 U.S.C. § 44718(d)(2), the constitutional claims. Court rejected the FAA’s standing and between the injury and the challenged permitted by the Wendell Ford Act, conduct, and (3) a likelihood that the whereas the defendants take the position injury will be redressed by a favorable that the Act precludes development of the decision.” United Food and Commercial landfill. In addition, the dispute is of Workers Union Local 751 v. Brown “sufficient immediacy and reality to Group, Inc., 517 U.S. 544, 551(1996). See warrant the issuance of a declaratory also, e.g., Bennett v. Spear, 520 U.S. 154, judgment.” Although the FAA has not yet 162 (1997); Northeastern Fla. Chapter taken action against Eagle, the FAA’s Associated Gen. Contractors of Am. v. position regarding the application of the Jacksonville, 508 U.S. 656 (1993). These Act to the Happy Landing Landfill site is “requirements ensure that plaintiffs have a clear. And while the DEP’s revocation or ‘personal stake’ or ‘interest’ in the suspension of Eagle’s permits presents an outcome of the proceedings, ‘sufficient to independent obstacle to the development warrant . . . [their] invocation of federal- of the facility, it is apparent that it would court jurisdiction and to justify exercise of be inordinately expensive and impractical the court’s remedial powers on . . .[their] from a business standpoint for Eagle to behalf.’” Joint Stock Soc’y, 266 F.3d at attempt to cure that problem until the 175 (quoting Wheeler v. Travelers Ins. Wendell Ford Act issue is resolved. If it is Co., 22 F.3d 534, 537-38 (3d Cir. 1994)). settled that the Wendell Ford Act does not
apply, Eagle asserts (and no party A plaintiff seeking a declaratory disagrees) that Pennsylvania law would judgment must possess constitutional permit Eagle to try to satisfy the standing but need not have suffered “the Pennsylvania DEP by redesigning the full harm expected.” The St. Thomas–St. Happy Landing Landfill facility, and Eagle John Hotel & Tourism Ass’n v. Virgin intends to pursue this course if it is Islands, 218 F.3d 232, 240 (3d Cir. 2000). successful in this case. It is also In such a case, we have said, a plaintiff has noteworthy that no party has suggested Article III standing if “there is a that there is any way in which Eagle could substantial controversy, between parties have attacked both of the obstacles that it having adverse legal interests, of sufficient faces in a single proceeding. Under these immediacy and reality to warrant the particular circumstances, we believe that issuance of a declaratory judgment.” Id. the standing requirements for a declaratory
judgment case are met. In the present case, these requirements are met. There certainly is “a In arguing that Eagle’s claim does substantial controversy” between Eagle not meet Article III requirements, the FAA and the defendants, and each side has focuses on the second and third prongs of interests that are adverse to the other. the generally applicable test for Eagle wishes to develop the Happy constitutional standing, i.e., causation and Landing Landfill and claims that this is redressability. The FAA begins by identifying Eagle’s injury as “the way, both the causation and redressability prohibition of its proposed landfill” and prongs are plainly satisfied. concedes that this injury “likely would satisfy the injury-fact-requirement,” but Second, even if Eagle’s injury is the FAA maintains that “[t]he Wendell defined more narrowly as its inability to Ford Act’s prohibition is not the direct operate the landfill, the FAA’s argument cause of Eagle’s inability to construct and hinges on the proposition that the operate the landfill.” FAA’s Br. at 13-14. “causation” prong of the test for “Rather,” the FAA writes, “the DEP’s constitutional standing demands that the decision to revoke a portion of Eagle’s challenged conduct be a but-for cause of water obstruction and encroachment the plaintiff’s injury. This proposition, permit and suspend its remaining permits however, is doubtful. Article III standing prevents Eagle from constructing the demands “a causal relationship,” but landfill and does so regardless of whether neither the Supreme Court nor our Court the Wendell Ford Act applies.” Id. at 14. has ever held that but-for causation is Similarly, the FAA maintains that “it is always needed. Moreover, it is well purely speculative whether Eagle’s injury recognized that but-for causation is would be redressed by the declaration that problematic in precisely the situation it seeks” because even if the declaration present here, i.e., where an effect is were granted, the lack of state permits “causally over-determined,” i.e., where would block the development of the there are multiple sufficient causes. Price landfill. Id. Waterhouse v. Hopkins, 490 U.S. 228, 241
(1989) (opinion of Brennan, J.). See W. There are two ways in which this Page Keeton et al., Prosser and Keeton on argument can be answered. First, under the Law of Torts § 41 at 266-67 (5th ed. the circumstances present here, where 1984); Richard W. Wright, Causation in Eagle faces two, independent regulatory Tort Law, 73 C AL . L. R EV . 1735, 1775-76 obstacles that can only be attacked in (1985). A classic example in tort law is separate proceedings, it makes sense to the hypothetical case in which a person is conceptualize Eagle’s injury, not as “the simultaneously hit with two lethal gun prohibition of its proposed landfill” in the shots fired at the same time by two general sense, but as the prohibition of its hunters. But-for causation leads to the landfill by the challenged application of absurd conclusion that neither shot was the the Wendell Ford Act. Cf. Northeastern cause of the victim’s demise, and Fla. Chapter Associated Gen. Contractors accordingly “[i]f two causes concur to of Am. v. Jacksonville, 508 U.S. at 664-66 bring about an event and either one of (injury in fact under the circumstances is them, operating alone would have been not the ultimate denial of contract but the sufficient to cause the identical result, inability to compete on equal terms). some other test [i.e., other than but-for When Eagle’s injury is understood in this causation] is needed.” Prosser and Keeton on the Law of Torts, supra, § 41 at 266. of the obstacles that it faces would run
afoul of the ca se - or- con troversy The FAA’s argument in this case requirement. resembles the argument that neither of the hunters in the hypothetical mentioned In our view, however, Article III above was the cause of the victim’s death. does not dictate such an absurd result. The FAA’s argument leads logically to the Under the particular circumstances here, conclusion that any litigation commenced where Eagle faces two, independent by Eagle to remove either of the two obstacles that are potentially removable obstacles that prevent it from developing but that cannot be challenged in a single the Happy Landing Landfill site – the litigation, we believe that Article III allows application of the Wendell Ford Act and Eagle to challenge each obstacle the lack of permits – would fail Article III separately. standards. Suppose, for example, that Eagle redesigned its facility but was The FAA contends, however, that unsuccessful in obtaining the needed state Article III demands that Eagle address its permits and then sought judicial review in state-law problems before litigating the the Pennsylvania courts. If those courts federal-law issues presented in this case, adhered to the same standing requirements but the FAA provides no convincing that the FAA argues apply in federal court, explanation for its view. The FAA does the very same argument that the FAA now not argue that the supremacy of federal advances could be made with respect to over state law demands that state-law Eagle’s state-court litigation. It could be obstacles be removed first, and we see no argued that “[the denial of the state basis for such an argument. Nor does the permits] is not the direct cause of Eagle’s FAA contend that it is more efficient in inability to construct and operate the this case for the state issues to be tackled landfill. Rather, the [application of the first – and, if anything, the opposite seems Wendell Ford Act] prevents Eagle from to be the case. Rather, the FAA’s only constructing the landfill and does so explanation for its position that Eagle must regardless of whether the [the permits are resolve the state issues first is that “the granted].” FAA’s Br. at 14. Likewise, it permitting process is logically prior to the could be argued that “it is purely construction and operation of a landfill.” speculative whether Eagle’s injury would FAA’s Br. at 16. The meaning of this be redressed by the [a state-court decision statement is not clear, but if the FAA is that it is entitled to the permits]” because arguing that the question whether Eagle is even if such a decision were issued, the entitled to permits under state law “is Wendell Ford Act would block the logically prior” to the question whether the development of the landfill. Id. In short, We ndell Ford Act prohib its the under the logic of the FAA’s argument, development of the Happy Landing any attempt by Eagle to attack either one Landfill facility, we do not follow the FAA’s logic. It does not seem to us that posture to be able to present their positions logic assigns priority to either the federal vigorously,” whether the facts of the case or state issues. are “sufficiently developed to provide the
court with enough information on which to In sum, under the particular factual decide the matter conclusively,” and circumstances of this case, Eagle has whether a party is “genuinely aggrieved so Article III standing. as to avoid expenditure of judicial
resources on matters which have caused III. harm to no one.” Peachlum, 333 F.3d at 433-34. In determining whether a case is The FAA also argues that Eagle’s ripe, we generally examine: “(1) ‘the claim is unripe because Eagle “has not fitness of the issues for judicial decision,’ shown that it will be able to obtain state and (2) ‘the hardship to the parties of permits to construct the proposed landfill,” withholding court consideration.’” Id. at “has never sought a formal determination 434 (citing Abbott Labs., 387 U.S. at 149); from the FAA that [the Wendell Ford] Act see also Nextel Communications of the prohibits its landfill,” and has not Mid-Atlantic, Inc. v. City of M argate, 305 requested the state aviation agency to F.3d 188, 193 (3d Cir. 2002). petition the FAA under 49 U.S.C. § 44718(d)(1) for an exemption for the In declaratory judgment cases, we Happy Landing Landfill facility. FAA’s apply a somewhat “refined” test “because Br. at 16, 19. declaratory judgments are typically sought
before a completed injury has occurred.” The ripeness doctrine serves to Pic-A-State Pa. Inc. v. Reno, 76 F.3d “determine whether a party has brought an 1294, 1298 (3d Cir. 1996). Thus, when action prematurely and counsels abstention “determining whether to engage in pre- until such time as a dispute is sufficiently enforcement review of a statute in a concrete to satisfy the constitutional and declaratory judgment action,” we look to prudential requirements of the doctrine.” “(1) the adversity of the parties’ interests, Peachlum v. City of York, 333 F.3d 429, (2) the conclusiveness of the judgment, 433 (3d Cir. 2003) (citing Philadelphia and (3) the utility of the judgment.” Pic- Federation of Teachers, Am. Fed’n of A-State Pa. Inc. v. Reno, 76 F.3d 1294, Teachers, Local 3, AFL-CIO v. Ridge, 150 1298 (3d Cir. 1996) (citations omitted); F.3d 319, 323 (3d Cir. 1998) and Abbott see also Step-Saver Data Systems, Inc. v. Labs. v. Gardner, 387 U.S. 136, 148-49 Wyse Technology, 912 F.2d 643, 646-47 (1967), overruled on other grounds, (3d Cir. 1990). Califano v. Sanders, 430 U.S. 99, 105 In considering whether Eagle’s (1977)). Various considerations “underpin Wendell Ford Act claim is ripe, two the ripeness doctrine,” including whether decisions of other courts of appeals are the parties are in a “sufficiently adversarial instructive. In Gary D. Peake Excavating, Inc. v. Town Board of the Town of permit were granted, Local Hancock, 93 F.3d 68 (2d Cir. 1996), a Law No. 1 would still town enacted a local law prohibiting the p r e v e n t [ h i m ] f r o m operation of dumps. Id. at 70-71. This operating [his] disposal local law was enacted after the New York facility.” Reviewing the State Department of Environmental ordinance at this time will Conservation (the “DEC”) promulgated allow Peake to make an new regulations that required a permit for informed decision as to construction and demolition (“C & D”) whether he should expend debris landfills. Id. at 70. Peake, who additional money to obtain a owned land in the town and wanted to DEC permit to operate a operate a C & D debris landfill, and his C&D landfill. If we uphold company sued the town, claiming that the the ordinance, Peake will be local law was unconstitutional. Id. at 71. able to cut his losses by The town argued that the plaintiffs’ claim halting his efforts to obtain was not ripe because they were not using a DEC permit; if we the property for a debris landfill and invalidate the ordinance, because they could not use the property for Peake can continue with the such a facility without first obtaining a DEC permitting process, state permit. Id. at 72. The Second Circuit knowing that obtaining the disagreed. Id. Observing that “[t]he issues DEC permit would not be in presented by the Plaintiffs’ claims are fit vain. In contrast, if judicial for judicial review because they are purely review were withheld until legal and may be decided without further Peake obtained a DEC factual development,” the Court continued: permit, Peake would have to
c h o o s e b e t w e e n ( 1 ) Moreover, the Plaintiffs abandoning his plans to would suffer substantial construct the C&D landfill hardship if judicial review in deference to a potentially were withheld. Peake unconstitutional ordinance a l r e a d y h a s s p e n t a n d ( 2 ) e x p e n d i n g “considerable sums” of "considerable sums" of money in an effort to obtain money to obtain a DEC a permit from the DEC to p ermit a nd there afte r operate a C&D landfill. He commencing an action claims that he is “reluctant challenging the ordinance. to spend more money to We see no reason why o b t a i n the ad diti o n a l Peake should have to information required by [the expend substantial sums of DEC] because, even if a money before challenging the constitutionality of the any hardship by the postponement of ordinance. Nor should judicial action.” Id. at 289. The Court Peake be required to subject concluded that the first factor weighed himself to the threat of the heavily in favor of a finding of ripeness criminal penalties imposed because the issues presented were “purely by Law No. 1 in order to legal.” Id. The Court then detailed why challenge the ordinance. delay would “work a substantial hardship
to Triple G.” Id. “Postponing judicial Id. action,” the Court wrote, “would force an unwarranted dilemma upon Triple G.” Id. The case of Triple G Landfills, Inc. at 290. It would be required either to v. Board of Commissioners of Fountain “scuttle its development plans altogether in County, 977 F.3d 287 (7th Cir. 1992), is deference to a potentially invalid county also closely on point. There, Triple G regulation, or complete the expensive and wanted to build a landfill in Fountain time-consuming state permit process, County, Indiana, but county residents submit a permit application that Fountain objected, and eventually the county County is certain to reject, and then, after adopted an ordinance that obligated a party incurring substantial sunk costs, bring a wishing to construct a landfill to obtain a facial challenge to the ordinance.” Id. county permit in addition to the state- The Court concluded that this dilemma issued permit that was already required. was unwarranted because delay would Id. at 288. The stringent requirements of result in no “countervailing benefit–either the new county ordinance effectively to the judicial process or the public barred Triple G from constructing its interest.” Id. Even though there was a landfill, and Triple G brought suit, chance that the state would “turn down challenging the constitutionality of the Triple G’s permit application,” the Court ordinance. held, this was not “sufficient to defeat
ripeness.” Id. Before reaching the merits of the case, the Seventh Circuit held that Triple We are persuaded by the analysis of G’s claims were ripe even though Triple G the Second and Seventh Circuits in these had not yet applied for either a state or a cases, and for similar reasons, we hold that county permit. Triple G Landfills, Inc., Eagle’s claim is ripe. Looking to the 977 F.3d at 288-90. The Court began by factors enumerated in Pic-a-State Pa. Inc., stating that “[i]nquiries into ripeness 76 F.3d at 1298, we note, first, that “the generally address two factors: first, adversity of the parties’ interests” is whether the relevant issues are sufficiently evident and is not disputed by the FAA. focused so as to permit judicial resolution Second, it is apparent that a judgment in without further factual development; and, this case will conclusively establish second, whether the parties would suffer whether Happy Landing Landfill falls within the Wendell Ford Act’s grandfather IV. clause. Third, a judgment on the merits will have significant practical value for We now consider the merits of Eagle. Eagle will then be in a position to Eagle’s claim that the Happy Landing know whether it should undertake the Landfill facility falls within the Wendell expensive project of redesigning the site Ford Act’s grandfather clause. The plan and trying once again to obtain state grandfather clause applies, Eagle argues, permits. because it commenced the “construction”
and “establishment” of the landfill facility In addition to these factors, we note before the enactment of the Wendell Ford that here, as in Gary D. Peake Excavating, Act. Inc. and Triple G, delay will not lead to A. further development of relevant facts. The facts that are pertinent to the question of The parties’ first point of the application of the grandfather clause – disagreement is whether the Wendell Ford regarding what Eagle did on the Happy Act’s grandfather clause is ambiguous. Landing Landfill site prior to the critical According to Eagle, the clause is clear and, date – are simple and undisputed. The crux as a result, the District Court erred in of the issue on the merits – i.e., what the looking beyond the statutory language and grandfather clause mea ns by the in relying on the FAA Advisory Circular. “commence[ment]” of “the construction or establishment” of a landfill (49 U.S.C. When interpreting a statute, we § 44718(d)(2)) – is purely legal. We will begin with the statutory language itself, not be in any better position to answer this and “[i]t is well established that ‘when the question in the future than we are now. statute’s language is plain, the sole Nor do we see any other advantage in function of the courts – at least where the delay. Although the FAA argues that disposition required by the text is not Eagle should be required to ask the FAA absurd – is to enforce it according to its for a formal determination regarding the terms.” Lamie v. U.S. Trustee, 124 S.Ct. application of the grandfather clause, the 1023, 1030 (2004) (citations omitted). FAA’s position on that issue is perfectly Here, we agree with the District clear. And as for the FAA’s argument that Eagle should be required to ask the state Court that the grandfather clause is aviation agency to petition the FAA for an ambiguous. As noted, the clause states that Section 503(b) of the W endell Ford exemption under 49 U.S.C. § 44718(d)(1), the futility of such a request is evident. Act, 49 U.S.C. § 44718(d)(1), does not We consequently hold that Eagle’s claim is apply to the “construction, establishment, ripe. expansion, or modification of, or to any
other activity undertaken with respect to, a municipal solid waste landfill, if the
construction or establishment of the District Court noted and as the record landfill was commenced on or before the bears out, that process is often complex date of enactment ” of the Act. 49 U.S.C. and lengthy, requiring the acquisition of § 44718(d)(2) (emphasis added). Since the land, the satisfaction of legal requirements, word “commenced” modifies both many different stages of work on the site, “construction” and “establishment,” we the solicitation of business, and the must ascertain what Congress meant by beginning of actual operations. One could c o m m e n c i n g c o n s t r u c t i o n a n d plausibly contend that the commencement commencing establishment. of the establishment of a landfill takes
place very early in this process. Along Eagle’s argument that this language these lines, it could be argued that a party is clear has surface appeal because the “start[s]” “the act of bringing [a landfill] r e l e v an t t e r m s – “ c o mmenc e d ,” into existence” “with permanence in view” “construction,” and “establishment” – are when it takes the very first step of the common and, in many contexts, their process that it intends to bring about that meaning is entirely plain. As used in the result. Thus, if a party buys land for use as grandfather clause, however, the meaning a landfill, that could be viewed as the of these terms is ambiguous. commencement of the establishment of the
landfill. At the other extreme, however, In ordinary speech, “to commence” one could plausibly argue that the means “to enter upon,” to “begin,” to commencement of the establishment of a “start,” or “to initiate formally by landfill does not occur until the point at performing the first act of.” Webster’s which “a certain continuance is assured,” Third New International Dictionary 456 and this might not be viewed as occurring (1971). “Establishment” may mean, until after the last legal obstacle is among other things, “the act of bringing surmounted or, perhaps, until commercial into existence, creating, founding, operation actually begins. Because the originating or setting up so that a certain statutory language referring to the continuance is assured” or “w ith “commence[ment” of the “establishment” permanence in view.” Id. at 778. And of a landfill can comfortably accommodate “construction” means “the act of putting these widely divergent interpretations, it is parts together to form a complete not unambiguous. integrated object” or “fabrication.” Id. at 489. Although “construction” is a more
concrete concept than “establishment,” the Unfortunately, these definitions are s t a t u t o r y r e f e r e n c e t o t h e not sufficiently precise to pin down at “commence[ment]” of the “construction” exactly what point in the process of of a landfill is also unclear. On the one bringing a landfill into existence the hand, doing any physical work on the site grandfather clause takes effect. As the could be viewed as a step in the “the act of putting parts together to form a complete grandfather clause. Thus, we will assume integrated object,” i.e., the landfill. On the for the sake of argument that the other hand, “construction” might be definitions in the Circular accurately narrowly construed to mean the erection of capture the statutory meaning. a structure of some sort on the site.
C.
For these reasons, we agree with the District Court that the statutory language is Eagle argues that it commenced the ambiguous. “construction” of the Happy Landing
Landfill before the Wendell Ford Act B. became law on April 5, 2000. The FAA Circular, as previously noted, defines “construction” as follows: Because the statutory language is ambiguous, we must consider whether to defer to the interpretation in FAA a. Construct a municipal solid waste landfill means Advisory Circular 150/5200-34, which d e f i n e s “ c o n s t r u c t i o n ” a n d excavate or grade land, or “establishment.” The District Court gave raise structures, to prepare a municipal solid waste the Circular the measure of deference prescribed by Skidmore v. Swift & Co., landfill as permitted by the appropriate regulatory or 323 U.S. 134 (1944), but the FAA argues that the Circular actually merits the permitting authority. stronger form of deference called for by In arguing that its activities at Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 Happy Landing Landfill prior to April 5, (1984). The FAA makes this argument 2000, fall within this definition, Eagle notes in particular that it completed the even though “interpretations contained in policy statements, agency manuals, and installation of 12 groundwater monitoring enforcement guidelines” generally do not wells in June 1996 at a cost of nearly $35,000 and that the process of installing fall within Chevron. Christensen v. Harris County, 529 U.S. 576, 587 (2000); see also such wells generally requires digging and the placement underground of inner and Alaska Dep’t of Envtl. Conservation v. EPA, 124 S.Ct. 983, 1001 (2004) (agency outer well casings, gravel, screens, sealing interpretation in “internal guidance material, and pumps or bailers. Eagle also points out that the state permit that memoranda” not entitled to Chevron deference). We find it unnecessary to mandated the installation of these wells decide this question, because even if we described this process as “major construction activity.” Appellant’s Br. at accept the Circular’s definitions of the key statutory terms, the Happy Landing 17, 19. Eagle contends that the installation Landfill facility falls within the of the w ells involved both the “excavat[ion]” of land and the “rais[ing]” within the broad definition of the term of “structure[s].” Id. at 15-22. “raise.” See id. at 1877 (defining “raise”
to mean, among other things, “construct”). We will analyze this argument in This interpretation is plausible in the two parts. First, we will consider whether present context since most construction at Eagle’s installation of the groundwater a landfill site is underground, and there are m o n i t o r i n g w e l l s c o n s t i t u t e d other situations (for example, building a “construction” under the definition in the subway) in which it is natural to speak of FAA circular. Second, we will address the underground construction. We note that question whether the revocation of Eagle’s the FAA has not argued that the reference permit prior to April 5, 2000, affects the in its Circular to the “rais[ing]” of applicability of the grandfather clause. structures is limited to above-ground
construction. In any event, because Turning to the first of these Eagle’s activities involved “excavation” questions, we conclude that the installation and because this is sufficient to invoke the of the wells comes easily within the grandfather clause, we need not decide Circular’s definition. In order to install the whether Eagle also “raise[d]” structures. wells, Eagle “excavate[d],” i.e., dug out, land. See Webster’s Third New The FAA argues that Eagle’s International Dictionary 791 (1971) installation of the groundwater monitoring (defining “excavate” as “to hollow out: wells was not “construction” but form a cavity or hole in,” “to dig out and “preconstruction” activity “undertaken to remove (as earth or mineral matter)”). In determine the viability of the site, in addition, Eagle also installed an access anticipation of the construction of the road and a silt perimeter fence, and these landfill, but not as part of its construction.” activities also involved excavation. FAA’s Br. at 26. As noted, however, the Moreover, all of these activities were Circular refers to excavation done “to done, in the words of the Circular, “to prepare” a landfill. Installation of wells prepare a municipal solid waste landfill.” for the purpose of establishing to the
satisfaction of state regulators that a site is It also seems likely that the suitable falls within the scope of installation of the wells amounted to the “prepar[ation].” “rais[ing]” of “structures.” That the wells qualify as “structures” seems obvious, see The FAA notes that our prior Webster’s Third New International opinion in this case characterized the Dictionary 2267 (1971) (defining a installation of the wells as “pre- “structure” as “something constructed or construction,” see Khodara Envtl., Inc., built”), and while it is somewhat awkward 237 F.3d at 188 (“After obtaining these to speak of the “raising” of an permits, Eagle began pre-construction by underground structure, such usage falls conducting engineering surveys and installing monitoring wells.”), but this the definition of “construction” that was language is of little significance for adopted by the FAA in its Circular. If present purposes. We used the term “pre- Jefferson County and Pine Creek construction” in passing and without Township feel that the FAA’s definition reference to the grandfather clause. At does not comport with Congress’s issue here is not the meaning of objective, they should not have urged us to “construction” in ordinary parlance but the defer to that definition. Jefferson County definition that the FAA placed in its and Pine Creek Township contend that the Circular. Our casual reference to “pre- operation of the Happy Landing Landfill construction” is no more controlling on will pose a threat to aircraft using the local that issue than the description of the airport, but we must presume that the installation of the wells in Eagle’s permit interpretation of the grandfather clause as “major construction activity.” [2]
adopted by the FAA, the agency with expertise in the field, takes aviation safety
Jefferson County and Pine Creek fully into account. Township make the interesting argument that the Happy Landing Landfill facility We therefore turn to the second cannot fall within the grandfather clause question noted above, i.e., whether the because Congress adopted the statutory revocation of Eagle’s permit prior to April provision at issue for the very purpose of 5, 2000, affects the applicability of the blocking Happy Landing Landfill. It is a grandfather clause. The District Court sufficient response to this argument to answered this question in the affirmative observe that – as all the defendants have and wrote: strenuously advocated – we are applying
We think that implicit in the A d v i s o r y C i r c u l a r ’ s definition of “construct[ion] [2] At oral argument, counsel for the of a municipal solid waste FAA agreed that the statement in landfill” is a temporality Khodara I does not bind us in any way. requirement: i.e., the landfill The FAA contends, however, that the
must have been under Wendell Ford Act’s grandfather clause construction and permitted was intended to distinguish between true b y t h e a p p r o p r i a t e “construction,” which is freighted with regulatory or permitting developer and community expectations, authority” as of April 5, and “preconstruction” activity, which is 2000. This requirement not. We acknowledge that this Eagle did not meet, as its distinction may make sense as a matter of Solid Waste Permit was still policy, but neither the Act itself nor the under suspension in April of FAA’s interpretation in the circular gives 2000. effect to such a policy. App. 51a-52a (emphasis in original). In sum, we hold that Eagle
commenced construction of the Happy In a similar vein, the FAA argues Landing Landfill within the meaning of that because “no construction was the FAA Circular prior to the effective ‘permitted by the appropriate regulatory or date of the W endell Ford Act. permitting authority’ as of the effective date of the statute,” Eagle does not fall VI. within the exception as interpreted by the FAA. FAA’s Br. at 26 (emphasis added). This argument overlooks the fact that the grandfather clause speaks o f the
46. In light of the narrow scope of “commence[ment]” of construction “ on or Section 503(b), however, it may well be before ” the date of the enactment of the that this situation will never arise. It Wendell Ford Act, 49 U.S.C. § 4717(d) should be kept in mind that, prior to the (emphasis added), not “ as of ” that date. adoption of FARA and § 503(b), the Accordingly, “construction,” as defined in FAA generally prohibited the location of t h e F A A C i r c u l ar , m u s t h a v e a landfill within five miles of an airport. “commence[d]” “on or before” April 5, See Khodara I, 237 F.3d at 189 n.3. 2000. This means that “on or before” that Thus, in order to fall within the District date, Eagle must have begun to “excavate Court’s hypothetical all of the following . . . land . . . to prepare a municipal solid conditions would have to be met: (1) the waste landfill as permitted by the landfill site would have to be located appropriate regulatory or permitting between five and six miles from an authority.” In other words, the excavation airport; (2) the airport would have to must have been “permitted by the have received a federal grant of the type appropriate regulatory or permitting specified in Section 503(b); (3) the authority” on the date of commencement, airport would have to be one that is and this date must have been “on or before “primarily served by general aviation April 5, 2000.” This reading includes “a aircraft and regularly scheduled flights of temporality requirement,” but not the one aircraft designed for 60 passengers or identified by the District Court. [3] less; (4) the construction or establishment of the landfill would have to have commence pursuant to state [3] The District Court stated that authorization prior to April 5, 2000; and without its “temporality requirement,” (5) completion of the landfill, for some the grandfather clause could produce the reason, would have to be delayed following “absurd result”: “a landfill – “indefinitely.” App. 52a. The class of once permitted remotely in time – would landfills satisfying all of these conditions reap the benefit of § 503(d)(2)’s [§ is almost certainly very small and may 503(b)’s] exception indefinitely.” App. well be nonexistent.
For the reasons set out above, we reverse the order of the District Court granting summary judgment for the defendants and remand for the entry of summary judgment in favor of the plaintiff and for the issuance of a declaratory judgment that the Happy Landfill falls within the grandfather clause of the Wendell Ford Act.
