AG Weiser testimony: Before the House Committee on Transportation, Housing & Local Govt. on HB24-1235 to Reduce Aviation Impacts on Communities (March 6, 2024)

Chair Froehlich and members of the Committee, thank you for this opportunity to testify today in favor of House Bill 24-1235 (“HB 24-1235”).  This bill was brought to you in response to outcry from Coloradans that live adjacent to general aviation airports and flight paths in our State.  I’m very grateful to Representatives Brown and Bird for bringing this bill and for responding to the needs of their communities.

This is an issue that I’ve become very familiar with in the last year.  My office continues to hear regularly from Boulder, Jefferson, and Arapahoe County residents alarmed and distraught, to say the least, at the impacts of aviation on their homes, their health, their children’s schools, and their quality of life.

As I learned more about this issue, particularly the use of leaded fuel in piston aircraft, I wrote to the U.S. Environmental Protection Agency (“EPA”) last July, urging them to find that lead emissions from aircraft engines contribute to air pollution and endanger public health.[1]  And the EPA did just that­—determining that “[l]ead emissions from aircraft are an important and urgent public health issue”, exposure to which can cause “irreversible and life-long health effects in children”.[2]

And last October, Boulder County residents invited me to come to their community to listen to concerns about the impacts to their homes and health from aviation noise and leaded fuel.  Senate President Steve Fenberg and Representatives Brown, Dixon, and Amabile joined as well.  Hearing from a crowd of hundreds from Boulder, Arapahoe, and other communities, I was deeply moved by what I heard—parents worried over how lead pollution can harm their infant baby’s health; a woman anguished at incessant flight noise preventing her from ever using her yard; and families fearful to allow their children to play in their backyards or school playgrounds given flights spewing leaded fuel emissions overhead.  What I heard in this town hall convinced me that this is a complex problem that must be addressed—both the incessant noise levels and the harmful lead in aviation fuel.  These issues are deeply impacting these residents and harming their quality of life.

In this hearing, some may tell you that these families assumed this risk when they chose to buy homes in areas near airports.  To that, I’ll just say that you will hear the same thing I did from these families from Arapahoe and Boulder Counties—that many of these residents experienced significant increases in flight traffic and noise after having moved to their homes.  And regardless of the origin or nature of these issues, they are real and we all have a responsibility to work on solutions.

For those from the aviation industry and those pilots in the room, I appreciate the value that aviation and our local airports bring.  Without question, we need these facilities for safety training and for the jobs they bring to our State.  My support for this bill in no way diminishes that value.  But I am confident we can support these facilities through the incentives contained in this bill to help them transition to safer fuel as well as encourage stronger relationships with airport adjacent towns and cities.  In fact, that very point is one I heard expressed last fall when a young pilot stood up to make it at the same town hall in Boulder County.

Before I joined the community at that town hall meeting, I received a letter from the national aviation industry lobby groups.  Their letter tried to warn me that any attempt by the State of Colorado to regulate aircraft flights, noise levels, or emissions would run afoul of federal law and be struck down in court.[3]  Now, preemption is a topic that I’m sure you’ll hear a great deal on today.  And that’s a fair question to raise and debate.  But broadly worded statements warning of preemption, lacking details or analysis, are no excuse to not act.  We owe it to those impacted families not to shrug our shoulders and concede nothing can be done, but instead to leverage what tools we do have at our disposal as a State.

Having served as a lawyer for the U.S. Department of Justice, I’m quite familiar with the Supremacy Clause of the U.S. Constitution and the legal principle that states cannot regulate in areas which Congress has chosen to occupy the field or when in conflict with federal law.  But the federal preemption doctrine isn’t so simple as to say that the State of Colorado cannot and should not do anything that falls under the broad umbrella term of “aviation.”  To the contrary, there are actions we can take as a state and actions that local governments that own airports can take; to that end, I believe that this bill is thoughtfully crafted to ensure its provisions are defensible.  And I know and expect that the rigor of the legislative process will reveal ways in which this bill can be further refined to be made more defensible.

To be sure, under federal preemption grounds, states cannot impose flight curfews[4]—and this bill does not do that.  Moreover, states cannot regulate aircraft noise levels[5]—and this bill does not do that either.  And, finally, states cannot regulate flight patterns[6]—and again, this bill does not do that.

As you will note in the bill, HB 24-1235 is deliberately crafted not to regulate, but rather to deploy our State’s tools to incentivize (and disincentivize) certain behaviors and operations.  Colorado may be unable to regulate flight patterns, but we can use state funds to reward airports that choose to have effective noise plans in place that are approved by the federal government.  Colorado may be unable to mandate that aircraft transition to safer unleaded fuel, but we can create funding incentives to encourage that transition (and on that topic, I heard from airports that are finding ways to provide that incentive themselves and requested state assistance in that regard).  Similarly, Colorado may be unable to impose flight curfews to restrict after-hours noise, but we can ensure that communities impacted by that noise have a voice and seat on state boards that administer state grants to airports.  This bill does that and more.

Further supporting the notion that Colorado has tools it can leverage to help these communities, federal caselaw supports the notion that federal preemption over aviation, while broad, does not mean that local governments are powerless to act in all cases.  In fact, the U.S. Supreme Court and appellate courts have held that there exists some discretion for municipalities that own airports to impose reasonable regulations.[7]  This authority is also found in federal statute,[8] and permits municipal airport owners to deploy some limited regulations deemed necessary.  And, specific to noise, in which federal law provides much less latitude, the law allows proprietors to petition for enhanced noise limits under the Airport Noice and Capacity Act.[9]  These are just some of the tools that local governments can deploy to address this important issue.  And notably, there is also no federal impediment for local airports to take advantage of the incentives that HB 24-1235 offers to make a safe and responsible transition to safer fuel and a better quality of life for aviation-impacted residents.

As we move forward to address this important issue, I want to acknowledge the dialogue and engagement we have joined with a range of stakeholders.  Those counties owning airports, those in the industry, and community leaders have all reached out to our office.  I appreciate their spirit of engagement and interest in finding collaborative solutions.  We remain committed to that dialogue, showing up to listen, and working together to solve challenges such as this one.  That’s why when President Fenberg, Representative Brown, Representative Bird, and others asked for guidance on this bill, we were happy to submit feedback and suggestions to minimize and avoid federal law conflicts.

In short, I recognize that the topic of federal preemption is one on which reasonable people can disagree.  I’m also very aware that, as to the legality of HB 24-1235, it is possible, and perhaps likely, that some portions of it may be challenged as unconstitutional—including by national lobby groups.  For present purposes, however, I want to reiterate that the conversations that led to this bill were thoughtful and reflective ones, and, if necessary, I am prepared to defend this bill in court.

Thank you for the opportunity to be here today.  I appreciate your consideration and am happy to answer any questions the Committee may have.

 

[1] Letter from Colo. Atty’ Gen. Phil Weiser to Adm’r Michael S. Regan, U.S. Envtl. Protection Agency (July 18, 2023) available at https://drive.google.com/file/d/1W4TD2HhGwPLFvsc00dTs3aG6UJJu48jX/view.

[2] Press Release, U.S. Envtl. Protection Agency, EPA Determines That Lead Emissions From Aircraft Engines Cause or Contribute to Air Pollution (Oct. 18, 2023) available at https://www.epa.gov/newsreleases/epa-determines-lead-emissions-aircraft-engines-cause-or-contribute-air-pollution.

[3] Letter from Aircraft Owners and Pilots Ass’n, Gen. Aviation Manufacturers Ass’n, Helicopter Ass’n Int’l, and Nat’l Air Transp. Assn. to Colo. Atty’ Gen. Phil Weiser (Oct. 19, 2023), available at http://tinyurl.com/5275detc.

[4] City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624 (1973).

[5] American Airlines, Inc. v. Town of Hempstead, 398 F.2d 369, 369 (2d Cir. 1968).

[6] Pirolo v. City of Clearwater, 711 F.2d 1006 (11th Cir. 1983).

[7] Burbank at 411 U.S. 635, n.14 (1973).

[8] Pursuant to federal law:

(b) Preemption.–(1) Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.

. . .

(3) This subsection does not limit a State, political subdivision of a State, or political authority of at least 2 States that owns or operates an airport served by an air carrier holding a certificate issued by the Secretary of Transportation from carrying out its proprietary powers and rights.

49 U.S.C.A. § 41713(b)(1), (3) (2023).

[9] Id. at § 47521 et. seq.; 14 C.F.R. Part 161.