An analysis of Federal Preemption and the scope of the Proprietary Powers Exemption

Alaska Airlines, Inc. v. City of Long Beach, 951 F.2d 977 (9th Cir. 1990) -- is the correct analysis of the preemption issues and the scope of the Proprietary Powers exception to preemption, after the City of Burbank decision. 

After the court determines (properly) that the city of Long Beach's restrictions on the number of flights and the level of noise permissible at it airport are preempted using its police powers according to the City of Burbank decision, the court recognized the city's Proprietary Powers  to control noise at its airport (an exception to preemption recognized in the City of Burbank opinion). 

The court described the scope of those powers and the rationale for the exemption extends beyond purely financial concerns: "The [proprietor] should be allowed to define the threshold of its liability, and to enact noise ordinances under the municipal-proprietor exemption if it has a rational belief that the ordinance will reduce the possibility of liability or enhance the quality of the City's human environment." The court determined the Long Beach ordinance was properly within the scope of its Proprietary Powers and are not preempted by the federal government's exclusive jurisdiction over the navigable airspace.  

The court then analyzed whether the flight restrictions imposed by Long Beach violate the Commerce Clause in the Constitution (conflict preemption) by imposing an unlawful burden on interstate commerce. The court (correctly) determined that the restrictions have a rational basis, are not facially discriminatory against interstate commerce, and do not impose a clearly excessive burden on interstate commerce, even though the restrictions impact jet carrier service which has interstate impacts. Ultimately, the court upheld the injunction against the ordinance on procedural due process grounds, but the overall analysis is important for you to understand.

A restriction on touch-and-go operations by flight schools conducting purely intrastate operations, should fall within an airport operators proprietary powers if a rational basis is shown to protect the public health and safety from the noise and lead pollution as well as safety hazards of such operations. Those governments are only left with the argument that they cannot be compelled by an injunction to exercise those Proprietary Powers and that the FAA grant conditions prevent them from exercising those powers without FAA approval. Many, if not all, proprietors have agreed to give up the power to protect the public health and safety from this public nuisance in exchange for some money to fill the hole in their airport fund budget caused by their refusal to impose rational charges against the users of the airport.