[00:00:00] Speaker 05:
Okay, this is a time set for argument in case 25-2830, Kedoni versus Port of Seattle.

[00:00:06] Speaker 05:
I know we have several appellants who are sharing time, and so you may each reserve time for rebuttal.

[00:00:12] Speaker 05:
Mr. Devoretsky, good morning.

[00:00:14] Speaker 04:
Good morning.

[00:00:14] Speaker 04:
May it please the court?

[00:00:15] Speaker 04:
Shied Voretsky for Alaska Air Group.

[00:00:17] Speaker 04:
I'd like to reserve two minutes for rebuttal.

[00:00:20] Speaker 04:
With me is Amir Tayrani for Delta.

[00:00:22] Speaker 04:
The port is joining our arguments.

[00:00:25] Speaker 04:
David Peters is also here for the United States.

[00:00:28] Speaker 04:
I'm happy to answer questions the court may have about any preemption issue, but I plan to focus today on the Clean Air Act and on impossibility preemption.

[00:00:36] Speaker 04:
Mr. Tehrani will focus on the ADA and the other implied preemption arguments, and Mr. Peters will address the federal interests at stake.

[00:00:44] Speaker 04:
Turning to the Clean Air Act, Section 233 preempts any state law standard respecting emissions of any air pollutant from any aircraft or engine, unless that standard is identical to the federal standard.

[00:00:58] Speaker 04:
Plaintiffs' claims meet every element of the statutory preemption test.

[00:01:02] Speaker 04:
The claims seek to assert a standard, because under the Supreme Court's decisions in Ginsburg and CSX, rules that are supposedly required by state common law count as standards for purposes of express preemption provisions.

[00:01:14] Speaker 04:
that standard here respects emissions of air pollutants because plaintiffs claim that the airlines violated Washington law when their planes emitted pollution while flying into and out of SeaTac that then built up to harmful levels on their property.

[00:01:29] Speaker 03:
Let me, I read the plaintiff's complaint a couple of times, maybe not every word every time I read it, but it's a pretty long complaint, tells a story.

[00:01:43] Speaker 03:
Do you read the complaint as challenging emissions, you know, from the exhaust, from the airplanes, or just thereafter cleanup, what's on the ground?

[00:01:58] Speaker 03:
I don't think... Does it encompass both, or is it focused on one or the other?

[00:02:04] Speaker 03:
I think the way you read it.

[00:02:05] Speaker 03:
Now remember, we're supposed to read it in the light most favorable to the plaintiff.

[00:02:09] Speaker 04:
I think the only way to read it

[00:02:10] Speaker 04:
is that the cleanup is the consequence of what they believe to be unlawful emissions.

[00:02:17] Speaker 04:
The cleanup is the remedy that state law provides for contamination that they claim comes from the emissions that result from our flying federally regulated planes and engines on federally regulated flight paths over their homes.

[00:02:32] Speaker 04:
The reason that is preempted under the Clean Air Act

[00:02:36] Speaker 04:
is that is a standard that respects emissions.

[00:02:40] Speaker 04:
The emissions, again, are the basis for the contamination that they say needs to be cleaned up.

[00:02:44] Speaker 04:
It is a standard that respects emissions, just under the plain language of the statute, of any air pollutant from an aircraft or engine.

[00:02:52] Speaker 03:
So any pollutant that might come from the exhaust of an engine that ends up on the ground for whatever reason,

[00:03:03] Speaker 03:
The fact that it's on the ground still means it's covered by the Clean Air Act.

[00:03:08] Speaker 04:
Yes, because it is an emission, if it is an emission from the engine or the airplane, again, looking at the text of the statute there.

[00:03:16] Speaker 00:
So the remedial, Washington's, of course, trying to invoke this remedial measure to abate the pollution, but you're saying it doesn't matter because the preemption really arises with the emission.

[00:03:31] Speaker 04:
First, yes, first as a matter of statutory text, the preemption arises from the emission.

[00:03:37] Speaker 04:
And second, it's not possible to separate out the remedy from the unlawful conduct that justifies the remedy as a matter of ordinary state tort law.

[00:03:47] Speaker 04:
The only reason that the airlines could be ordered or the court could be ordered to pay cleanup costs or to establish a medical monitoring fund that they ask for is if it's determined that they violated the law by causing the pollution in the first place.

[00:04:00] Speaker 04:
And so to Judge Paez's question, you can't separate out the two.

[00:04:04] Speaker 04:
The only reason that you potentially have the cleanup costs, the medical monitoring fund, whatever, is because of an unlawful emission.

[00:04:12] Speaker 04:
And the state standards regarding emissions from aircraft or engines are preempted under the Clean Air Act, unless, again, they're identical to a federal standard.

[00:04:22] Speaker 03:
One of the things that they also talk about are, I don't know if I've got this correct, but they talk about

[00:04:31] Speaker 04:
Releases of metal from the fuselage of the airplane so flaky right like The Clean Air Act so that that's also covered by the plain language of the Clean Air Act again If we just go back to the statute first the statute is distinguishing between emissions from an aircraft or an engine So it's not just the gases from the engine or whatever from the engine that is covered

[00:04:58] Speaker 04:
It's also an emission from the aircraft itself, implying that pollutants can be emitted from the plane.

[00:05:05] Speaker 04:
In addition, when we look at the definition of air pollutant in the statute, this is 42 USC 7602G, it's quite broad.

[00:05:12] Speaker 04:
It's any air pollutant agent or matter which is emitted into or otherwise enters into the ambient air.

[00:05:18] Speaker 04:
So under the plane text of the statute, the particular matter that they are alleging is also preemptive.

[00:05:26] Speaker 03:
What about any kind of debris from the plane, from the fuselage of the plane?

[00:05:30] Speaker 03:
I mean, is that different than exhaust?

[00:05:35] Speaker 04:
I think that we're looking at what an agent or matter, again, it's very broad language.

[00:05:40] Speaker 04:
If you had a situation where

[00:05:42] Speaker 04:
an entire wing fell off of a plane or something.

[00:05:45] Speaker 04:
You wouldn't ordinarily think of that as a pollutant.

[00:05:47] Speaker 04:
You didn't pollute the ground with the wing.

[00:05:50] Speaker 04:
That probably wouldn't be covered by the Clean Air Act.

[00:05:52] Speaker 04:
Presumably not.

[00:05:52] Speaker 04:
But that's not what they're talking about here.

[00:05:54] Speaker 00:
Or if all the luggage somehow flew out and landed on the ground.

[00:05:57] Speaker 04:
They're talking here about very fine particulate matter.

[00:05:59] Speaker 04:
And whether that comes from the engine or whether that comes from the aircraft itself, it's covered under the plane language of the Clean Air Act.

[00:06:05] Speaker 03:
And that's the way you understand the allegations in the complaint.

[00:06:08] Speaker 03:
Correct.

[00:06:08] Speaker 03:
They listed a host of

[00:06:11] Speaker 03:
contaminants, I think, in the complaint.

[00:06:14] Speaker 04:
Sure.

[00:06:15] Speaker 04:
They're all different kinds of air pollutants under that broad definition.

[00:06:22] Speaker 04:
If the court has no other questions on the Clean Air Act, in watching my clock, I would briefly turn to impossibility preemption, which I also think is a straightforward way to resolve this case.

[00:06:31] Speaker 04:
State law is preempted when it's impossible for a private party to comply with both state and federal requirements, absent special accommodations from the federal government.

[00:06:40] Speaker 04:
Here, there are three things that the airlines could do and that the port could do in order to avoid state law liability.

[00:06:48] Speaker 04:
One, modify their aircraft to reduce emissions.

[00:06:52] Speaker 04:
Can't do that without permission from the federal government.

[00:06:55] Speaker 04:
Two, alter their flight paths so that they're not flying over plaintiff's homes.

[00:06:58] Speaker 04:
Can't do that without permission from the federal government.

[00:07:01] Speaker 04:
Three, stop service to see.

[00:07:02] Speaker 03:
But if you read their complaint, remember, this is up here on 12b6.

[00:07:06] Speaker 03:
So we look at the allegations in the complaint, right?

[00:07:09] Speaker 03:
Right.

[00:07:09] Speaker 03:
And, you know, that might be a remedy.

[00:07:12] Speaker 03:
We don't know.

[00:07:13] Speaker 03:
We don't.

[00:07:13] Speaker 03:
We don't know that until we get to the end of the case.

[00:07:16] Speaker 03:
Right.

[00:07:17] Speaker 03:
Well, I think, you know, that's not too helpful.

[00:07:19] Speaker 04:
I think we do know that from the complaint, because the only thing that they are asking for in the complaint, they are saying, go ahead, fly your federally regulated routes, keep the routes, keep the planes, as is, but pay us damages.

[00:07:34] Speaker 04:
And that goes back to our earlier colloquy.

[00:07:35] Speaker 04:
That's a different point.

[00:07:36] Speaker 04:
No, no, but I think it comes back to the same point.

[00:07:38] Speaker 04:
The only way to understand their complaint is that they are seeking money for a violation of state law.

[00:07:45] Speaker 04:
If you are violating state law, you are not by definition simultaneously complying with both state and federal law.

[00:07:52] Speaker 04:
And the Supreme Court has made clear in cases like PLEVA and cases like Bartlett that a first a defendant doesn't have to cease operating in a market entirely in order to avoid preemption.

[00:08:04] Speaker 04:
And second, that

[00:08:06] Speaker 04:
if a possibility preemption would be a dead letter if the answer to any preemption question were just pay damages.

[00:08:12] Speaker 04:
Because again, at that point, you're not complying with both state and federal law.

[00:08:15] Speaker 04:
You are violating state law and paying for it.

[00:08:18] Speaker 03:
Let me ask you, do you understand the complaint to be alleging negligence in the initial pollution, like the exhaust, or just regarding the clean-up, negligent in the way that they have

[00:08:31] Speaker 04:
I think the only way to understand it is in the initial exhaust.

[00:08:36] Speaker 04:
Let me give you an analogy as an example.

[00:08:38] Speaker 04:
If I punch my neighbor and I refuse to then pay the medical expenses,

[00:08:43] Speaker 04:
You wouldn't say that the thing that I did wrong is not paying the medical expenses.

[00:08:47] Speaker 04:
The only reason that I am obligated to pay the medical expenses is because I committed a battery in the first place.

[00:08:52] Speaker 04:
That's what triggered the need for the medical expenses.

[00:08:54] Speaker 04:
As a matter of state tort law, that is the only way to understand what the alleged unlawful conduct is here.

[00:09:01] Speaker 04:
And if the unlawful conduct that they allege here is emissions from the plane and tied to the emissions and the flight paths, that's preempted for all the different reasons that are explained in the brief, some of which I've talked about today.

[00:09:13] Speaker 04:
I'm happy to answer any questions the court may have.

[00:09:15] Speaker 04:
I do want to be mindful of my rebuttal time as well.

[00:09:17] Speaker 05:
Okay, we'll put two minutes on the clock for you.

[00:09:20] Speaker 05:
Thank you, Mr. Deveretsky.

[00:09:27] Speaker 05:
Thank you.

[00:09:27] Speaker 05:
Mr. Tairani, good morning.

[00:09:29] Speaker 02:
Good morning, Your Honors, and may it please the court, Amir Tairani for Delta Airlines.

[00:09:34] Speaker 02:
In addition to being barred by the Clean Air Act's preemption provision and by conflict preemption,

[00:09:41] Speaker 02:
The plaintiff's complaint is also barred by the broad language of the ADA's express preemption provision, by the FAA's exclusive control over airspace management, and by the EPA and FAA's exclusive control over aviation emissions.

[00:09:58] Speaker 02:
The Supreme Court has described the ADA's express preemption provision as deliberately expansive and as conspicuous for its breadth.

[00:10:08] Speaker 02:
It bars any state law claim that relates to a price, route or service of an air carrier.

[00:10:16] Speaker 02:
That's precisely what these allegations relate to service.

[00:10:21] Speaker 02:
They relate to service, Your Honor, because they are a direct attack on the airline's decisions to fly into and out of SeaTac and the frequency of those flights.

[00:10:34] Speaker 03:
I keep saying this, but for me, you have to read the complaint.

[00:10:42] Speaker 03:
I mean, that's where we're at.

[00:10:44] Speaker 03:
The District Court denied the motion to dismiss on 12b6 grounds, right?

[00:10:49] Speaker 03:
So what's critical here is what's alleged in the complaint, right?

[00:10:54] Speaker 02:
That's exactly right, Your Honor.

[00:10:56] Speaker 02:
And the complaint mentions the defendant's flights and their routes in and out of SeaTac more than 15 times.

[00:11:04] Speaker 02:
It alleges that the contamination at issue is, quote, the direct result of the flights into and out of SeaTac.

[00:11:11] Speaker 02:
that it's caused by those flights, that it is created by those flights, and that is closely associated with the defendant's flight paths.

[00:11:20] Speaker 02:
So this is a direct challenge to the routes that the airlines are flying into and out of SeaTac.

[00:11:28] Speaker 03:
So one of the ways you could read this complaint is what they're really complaining about is the failure to clean up.

[00:11:36] Speaker 02:
It's impossible to divorce the alleged failure to clean up.

[00:11:40] Speaker 02:
from the flights and the flight paths that, in the words of the complaint, directly result in the emissions that the defendants have supposedly failed to clean up.

[00:11:51] Speaker 02:
We wouldn't be standing here today, Your Honor, if the plaintiffs didn't allege that they lived under the flight paths.

[00:11:59] Speaker 02:
And we wouldn't be here today if the defendants weren't required to fly along the federally specified flight paths.

[00:12:07] Speaker 03:
As I understand it, it was a five-mile

[00:12:09] Speaker 03:
radius around the airport is what they're identified as the area of concern.

[00:12:17] Speaker 02:
Correct, Your Honor.

[00:12:19] Speaker 02:
And the plaintiffs allege that they live within that five mile radius, that they live under flight paths that

[00:12:27] Speaker 02:
have been specified by the FAA.

[00:12:31] Speaker 02:
This theory of liability challenges the defendant's ordinary flight operations.

[00:12:36] Speaker 02:
There's nothing unique about SeaTac.

[00:12:39] Speaker 02:
There's nothing unique about the fact that these airplanes have to fly below 3000 feet.

[00:12:45] Speaker 02:
when they land and when they take off.

[00:12:48] Speaker 02:
If this theory of liability is permitted to go forward, then the defendants would face similar claims at every commercial airport throughout the country.

[00:12:57] Speaker 02:
They would face staggering liability.

[00:13:00] Speaker 02:
They would be making decisions about the markets to serve based not on consumer demand, but based on the risk of state law liability.

[00:13:10] Speaker 02:
That is anathema

[00:13:11] Speaker 02:
to the deregulatory objectives of the Airline Deregulation Act.

[00:13:15] Speaker 02:
It also would create massive disuniformity in an area that requires uniformity.

[00:13:22] Speaker 02:
Air travel is inherently interstate.

[00:13:24] Speaker 02:
It's inherently international.

[00:13:26] Speaker 02:
There needs to be a uniform set of federal regulations governing airplane emissions.

[00:13:32] Speaker 02:
It can't be the case to use

[00:13:34] Speaker 02:
the words of this court's decision in Montalvo, that an airplane that takes off from Providence, Rhode Island, that lands in Baltimore, Maryland, and that continues on to Miami, Florida, is subject to three different sets of state standards along the way.

[00:13:50] Speaker 02:
And it can't be the case that a Delta Airlines flight taking off from Atlanta, Georgia, is subject to one set of emission standards when it takes off, a different set of emission standards when it lands,

[00:14:02] Speaker 02:
and different sets along the path from Georgia to Washington based on the state that the airplane happens to be passing over at that point in the flight.

[00:14:12] Speaker 02:
So for all of these reasons, these claims are squarely barred by the ADA's express preemption provision.

[00:14:19] Speaker 02:
They relate to airlines routes and services.

[00:14:22] Speaker 02:
They're also barred

[00:14:23] Speaker 02:
by the FAA's exclusive control over airspace management.

[00:14:28] Speaker 02:
Congress has given the United States government exclusive sovereignty over United States airspace.

[00:14:35] Speaker 03:
What caught my eye when I read the complaint was they had all these studies like from the University of Washington and a couple other places about the effects of this black dust or black soot or whatever, the contaminants that are in the air and whatnot.

[00:14:55] Speaker 03:
Is there any party or any entity that might be responsible for, you know,

[00:15:06] Speaker 03:
Clean it up.

[00:15:08] Speaker 02:
Your Honor, we're talking about the inherent byproducts of ordinary flight operations.

[00:15:15] Speaker 02:
The FAA

[00:15:16] Speaker 02:
when it sets flight paths, the EPA, when it sets emission standards, takes these considerations into account.

[00:15:23] Speaker 02:
For example, the move up study that your honor referenced and that is mentioned in the complaint was expressly considered by the EPA in the 2022 order reproduced in Delta's addendum that sets particulate matter limitations for

[00:15:42] Speaker 02:
airplane engines.

[00:15:44] Speaker 02:
That's at Addendum 43.

[00:15:46] Speaker 02:
The FAA, when it sets flight paths, strikes a careful and delicate balance between considerations of safety and efficiency on the one side.

[00:15:58] Speaker 02:
and the protection of persons and property on the ground, on the other.

[00:16:02] Speaker 02:
The U.S.

[00:16:03] Speaker 02:
Supreme Court recognized that in city of Burbank versus Lockheed and explained that in light of this delicate balance that the FAA needs to strike, that there needs to be a, quote, uniform and exclusive system of federal regulation.

[00:16:19] Speaker 00:
Maybe this is a variation on Judge Paia's question, but in your view,

[00:16:25] Speaker 00:
Is there any way in which these plaintiffs that live in this contamination zone could allege any kind of damages or claim for the impact on their habitat?

[00:16:42] Speaker 02:
Not from these ordinary flight operations.

[00:16:44] Speaker 02:
There's no allegation in this complaint that the defendants have deviated from the federally prescribed flight paths.

[00:16:52] Speaker 05:
And from the federally prescribed could they bring a claim for violation of federal emission standards or bring a claim for deviation from a flight path, for example, if the claim was was premised on federal law.

[00:17:05] Speaker 02:
The plaintiffs could bring a parallel claim.

[00:17:11] Speaker 02:
that seeks to enforce a violation of a federal standard under state law.

[00:17:16] Speaker 02:
But this court's decision in Nacarino versus Cache makes clear that where a plaintiff seeks to rely on enforcing a federal standard through a parallel state law standard, it needs to allege a violation of federal law in the complaint.

[00:17:33] Speaker 02:
And when it fails to do so, 12b6 dismissal is appropriate.

[00:17:38] Speaker 00:
That's how...

[00:17:39] Speaker 00:
potential for a claim for violation of the federal emissions law, correct?

[00:17:46] Speaker 02:
There is a potential, but that's not the claim.

[00:17:49] Speaker 02:
That's not the claim that these plaintiffs brought, Your Honor, and that's precisely why in Nacarino, this court

[00:17:58] Speaker 02:
recognized the possibility of a parallel claim to enforce the requirements of the federal Food, Drug and Cosmetics Act, but still dismissed the case because the plaintiffs did not allege a violation of federal law.

[00:18:13] Speaker 02:
And that's precisely the case here.

[00:18:15] Speaker 02:
The plaintiffs don't allege a violation of federal emission standards.

[00:18:20] Speaker 02:
They don't allege a violation of the flight paths that are specified by

[00:18:27] Speaker 02:
the FAA.

[00:18:28] Speaker 02:
So this complaint is this is subject to dismissal not only based on the ADA, but because it is an impermissible intrusion on the expert regulatory determinations that the FAA made in specifying flight paths and that the EPA made in establishing the emissions levels for these ordinary flight operations.

[00:18:52] Speaker 02:
And again, I would return to the fact that there's nothing

[00:18:54] Speaker 02:
unique about SeaTac.

[00:18:56] Speaker 02:
There's nothing unique about the defendant's flights into this airport.

[00:19:02] Speaker 02:
And if this claim is permitted to move forward, it would lead to a risk of massive liability for these defendants.

[00:19:09] Speaker 02:
It would lead to defendants making decisions about the markets to serve based on the risk of state law liability, not based on the free market principles enshrined in the ADA.

[00:19:20] Speaker 02:
And it would lead to a patchwork of disuniform state law standards that is incompatible with the uniformity that this court recognized is necessary in the Gian Turco case.

[00:19:32] Speaker 02:
The U.S.

[00:19:32] Speaker 02:
Supreme Court recognized is necessary in city of Burbank.

[00:19:36] Speaker 05:
We'll put two minutes on the clock for rebuttal.

[00:19:38] Speaker 05:
We'll hear next from Mr. Peters, who's appearing for the United States.

[00:19:43] Speaker 05:
Mr. Peters, as you're an amicus, I don't think we'll have rebuttal time for you, so this is your time.

[00:19:48] Speaker 05:
No problem, Your Honor.

[00:19:50] Speaker 06:
Good morning and may it please the court, David Peters on behalf of the United States of America.

[00:19:54] Speaker 06:
Congress has long recognized that aviation management and safety are spheres where the federal interest is dominant and the need for a uniform and exclusive system of federal regulation is paramount.

[00:20:05] Speaker 06:
That's why Congress included in the Clean Air Act and Airline Deregulation Act broad provisions expressly preempting state standards and is why this court has recognized that even absent such an express preemption provision, preemptive intent is more readily inferred in the context of aviation, given the federal government's extensive regulation in the area pursuant to the Federal Aviation Act.

[00:20:25] Speaker 05:
Does the United States have a view, there's so many different preemption arguments that have been made here, does the United States have a view on which of these is the strongest?

[00:20:33] Speaker 06:
I'm not sure.

[00:20:34] Speaker 06:
I think we agree that there are various different ways in which these claims are preempted.

[00:20:38] Speaker 06:
I don't think we have a strong view on which of those is the easiest way to go about doing it or, you know, the federal government enforces all of these federal standards and we think that they are all implicated and preempt the state law claims that are at issue here.

[00:20:50] Speaker 03:
So you don't have a

[00:20:52] Speaker 03:
any of you on which we use express preemption, flag preemption, assuming we were to go, assuming we were to disagree with the district court.

[00:20:59] Speaker 06:
You know, I mean, I think the district court erred in several key respects in holding that these claims weren't expressly preempted.

[00:21:05] Speaker 06:
And so I think it's worthwhile to, I think, clarify to a degree.

[00:21:08] Speaker 06:
to this court to clarify why those claims are.

[00:21:10] Speaker 06:
I mean, I think in the ADA context, for example, the district court relied on this kind of language about having to bind to claims, which would suggest that common law claims can never be preempted by the ADA.

[00:21:20] Speaker 06:
This court has explained why that's not right, but I think it's worth reiterating why that's not the case here.

[00:21:25] Speaker 06:
But again, we don't have a strong position on if this court is inclined to rule that these claims are preempted, which of the various theories are.

[00:21:33] Speaker 03:
You may not have thought about this because this doesn't

[00:21:36] Speaker 03:
You know, the question I have really relates to the port, but you know, they have an inverse condemnation claim under the Washington State Constitution.

[00:21:47] Speaker 03:
I'm aware, Your Honor, we didn't take a position on those claims.

[00:21:49] Speaker 03:
Do you have any views on that?

[00:21:52] Speaker 06:
No, Your Honor, we participated on a limited basis, which is why we think these claims are preempted by the federal standards.

[00:21:57] Speaker 05:
Including the condemnation claim?

[00:21:59] Speaker 06:
No, no, our participation is not on the condemnation claim.

[00:22:02] Speaker 06:
Do you have a view on whether that claim is preempted?

[00:22:05] Speaker 06:
not in position to take a view right now in front of the court about what that claim is.

[00:22:09] Speaker 03:
Let me ask you this.

[00:22:11] Speaker 03:
I'm sure you carefully read the complaint.

[00:22:14] Speaker 03:
I did, Your Honor.

[00:22:15] Speaker 03:
Okay.

[00:22:16] Speaker 03:
How do you read it?

[00:22:16] Speaker 03:
Do you think they're just challenging the cleanup aspects or are they challenging

[00:22:22] Speaker 03:
the emissions?

[00:22:24] Speaker 06:
I share the views that are expressed by my colleagues previously at the podium.

[00:22:28] Speaker 06:
I think that there cannot be a standalone remediation claim because the action that's being challenged here is the unlawful conduct, but that conduct of the airlines and the port are governed by federal standards and so therefore their claims are preempted.

[00:22:42] Speaker 00:
Is it possible that there are emissions that are

[00:22:47] Speaker 00:
not air pollutants under the federal law that would permit them to file a state claim?

[00:23:02] Speaker 06:
The scope of the CAA, the Clean Air Prohibition is broad, whether there is some kind of pollutant that might exist that doesn't or some kind of item that might not be an air pollutant.

[00:23:13] Speaker 06:
It may not fall within the scope of the Clean Air Act, but may nonetheless be preempted by any number of other provisions, right?

[00:23:19] Speaker 06:
I mean, the Federal Aviation Act has extremely broad or sorry, very extensive regulation about the way in which fuselages or airplanes in general are to be designed.

[00:23:30] Speaker 06:
and that I think occupies the field of kind of airworthiness of various aspects of the plane.

[00:23:36] Speaker 06:
And so even if a claim may not fall within the scope of the Clean Air Act, it may nonetheless be preempted by some other provision like the Federal Aviation Act.

[00:23:45] Speaker 06:
There are no other questions?

[00:23:47] Speaker 06:
Thank you.

[00:23:48] Speaker 06:
Okay, thank you.

[00:23:48] Speaker 05:
Mr. Berman, good morning.

[00:23:52] Speaker 01:
Good morning, Your Honor.

[00:23:54] Speaker 01:
Steve Berman and Nathan Emans on behalf of the plaintiffs in this case.

[00:23:58] Speaker 01:
Let me start by saying that I think procedure matters here.

[00:24:03] Speaker 01:
It matters greatly, because we haven't heard the defendants mention the procedural posture that this motion was decided on.

[00:24:12] Speaker 01:
And that is, as the district court noted, preemption is an affirmative defense.

[00:24:18] Speaker 01:
And you don't grant a motion to dismiss on an affirmative defense unless the complaint actually please all the elements of that preemption.

[00:24:26] Speaker 05:
That's true.

[00:24:26] Speaker 05:
I mean, I think the issue with the case, obviously, is that it starts to bear on some areas of law that have a lot of federal law, aviation and air quality.

[00:24:37] Speaker 05:
And so I think that's why I think the district court granted the 1292B request to put it up here so that we could take a look at it before further discovery or investment in the case.

[00:24:47] Speaker 05:
I guess the question I would have is, you know, particularly under the Clean Air Act provision, the Section 233 argument, how do you respond to just the plain text there?

[00:24:58] Speaker 01:
I respond to the plain text the way the district court did.

[00:25:02] Speaker 01:
Two ways, actually.

[00:25:03] Speaker 01:
First, the district court said under this court's decision in Navy, you make these determinations on a case-by-case basis.

[00:25:12] Speaker 01:
And right now on this record, it's their burden to show

[00:25:16] Speaker 01:
that they are in compliance with all federal regulations, not our burden.

[00:25:20] Speaker 05:
Well, have you alleged they're violating any federal regulations?

[00:25:22] Speaker 01:
We're not.

[00:25:23] Speaker 01:
And they come in and say, we're in full compliance.

[00:25:25] Speaker 01:
They imply they're, as the district court found, they're implying they're in compliance.

[00:25:31] Speaker 01:
But no one knows that.

[00:25:32] Speaker 01:
What they could have done is brought a factual attack and come in and said, we're actually in full compliance.

[00:25:39] Speaker 01:
The emissions that we're putting out are exactly what the regulator said we can do.

[00:25:45] Speaker 01:
But they didn't do that.

[00:25:46] Speaker 01:
They didn't do that.

[00:25:47] Speaker 05:
The question is whether that was their burden when the allegation here was that it violated state tort law.

[00:25:51] Speaker 05:
I mean, I think you're right that the district court relied on the Navy case, so maybe we should go back to that because I think it's an important part of at least the district court's analysis.

[00:26:00] Speaker 05:
So the argument's made, well, that case is a little different because it involves more like a stationary structure.

[00:26:05] Speaker 05:
So do you think that matters?

[00:26:07] Speaker 01:
I don't think it matters because what matters at this stage of the case is we allege that there was an unlawful attrition.

[00:26:14] Speaker 01:
right on our property.

[00:26:15] Speaker 01:
They come back and say, well, this is all permitted, but we don't know that.

[00:26:20] Speaker 01:
Let's take, for example, your questions, Judge Paez, about the different kinds of material that we claim are coming onto our client's property.

[00:26:30] Speaker 01:
They say that it's air pollution.

[00:26:32] Speaker 01:
Well, we make a distinction in the complaint, and that's at ER 56 and 57, between air pollution and heavy metals.

[00:26:42] Speaker 01:
And we also make a distinction in the complaint at paragraphs 54 and 55 of gases coming out of the back, which I would agree are emissions, and flaking of heavy metals off the fuselage.

[00:26:57] Speaker 05:
But isn't that all subject to the Clean Air Act?

[00:26:59] Speaker 01:
I don't believe that the flaking is.

[00:27:01] Speaker 01:
And on this record, they haven't established that it is.

[00:27:04] Speaker 01:
They didn't put in any declarations or any evidence on a factual attack to say,

[00:27:10] Speaker 01:
This flaking is permitted.

[00:27:12] Speaker 01:
It's rugged.

[00:27:13] Speaker 01:
What if the flaking is this big?

[00:27:15] Speaker 05:
There's no allegation that it's that big, right?

[00:27:17] Speaker 05:
And I thought we're talking about fine particulate matter that lands and maybe creates a dusting almost.

[00:27:23] Speaker 01:
Well, we're talking about toxic heavy metals that are coming down on our client's property from flaking.

[00:27:30] Speaker 01:
And they have not established that flaking is covered by the CAA or any regulation.

[00:27:35] Speaker 00:
I think the argument is that if it's an air pollutant,

[00:27:41] Speaker 00:
It's an emission from an aircraft or an engine thereof.

[00:27:45] Speaker 01:
Is it an air?

[00:27:46] Speaker 01:
Oh, I'm sorry.

[00:27:47] Speaker 00:
Well, and then the question is, do they need to go further than that when you have the Massachusetts EPA case that talks about any kind of compounds, air panel.

[00:27:59] Speaker 01:
Well, I think.

[00:28:00] Speaker 00:
That are of whatever stripe.

[00:28:03] Speaker 00:
So why do they need to do anything more than to cite the statute and the breadth of the statute?

[00:28:11] Speaker 01:
because if they're not in compliance with the statute and they're depositing materials that aren't allowed or in amounts that aren't approved, then they don't have a preemption defense, right?

[00:28:23] Speaker 01:
We've alleged intrusion.

[00:28:25] Speaker 01:
They're coming back as an affirmative defense saying, this is all allowed, but they haven't made a showing.

[00:28:31] Speaker 01:
that it's allowed.

[00:28:31] Speaker 01:
That's what the district court was troubled by.

[00:28:33] Speaker 05:
I think it's maybe allowed isn't the right word, but maybe preempted is the word.

[00:28:37] Speaker 01:
That's what the district court was troubled by.

[00:28:39] Speaker 01:
We don't know, he said.

[00:28:41] Speaker 01:
We don't know if this is authorized.

[00:28:43] Speaker 01:
We don't know if it's permitted.

[00:28:44] Speaker 01:
Let's take some discovery and find out.

[00:28:46] Speaker 01:
And you said, you know, maybe we should get to this earlier rather than later.

[00:28:50] Speaker 01:
But I think in a procedural matter that we're in the right position.

[00:28:54] Speaker 01:
We've alleged what we have to allege a state of state law claim.

[00:28:59] Speaker 01:
They want to assert this affirmative defense.

[00:29:01] Speaker 01:
They can't do it facially because they're just hypothetically saying we're in compliance, as the judge found.

[00:29:09] Speaker 01:
And as this court has said, hypothetical conflicts aren't enough to create preemption.

[00:29:14] Speaker 00:
Have you alleged a violation of the federal law?

[00:29:16] Speaker 01:
We have not.

[00:29:17] Speaker 00:
I didn't think so.

[00:29:18] Speaker 01:
We have not.

[00:29:18] Speaker 01:
We very carefully did not, because we don't have enough evidence.

[00:29:24] Speaker 01:
What they're doing is in their records, right?

[00:29:27] Speaker 01:
We don't know what they're doing.

[00:29:28] Speaker 01:
So we couldn't allege a violation.

[00:29:30] Speaker 00:
Know what landed on your client's land.

[00:29:33] Speaker 01:
But we don't know if the way it's coming out of the airplane, for example, exceeds what's allowed by the regulators.

[00:29:40] Speaker 01:
We just don't know that.

[00:29:41] Speaker 01:
That's what discovery is for.

[00:29:43] Speaker 01:
That's what Judge Whitehead thinks

[00:29:45] Speaker 05:
Right.

[00:29:45] Speaker 05:
But the nature of the claim is not that we have a theoretical federal law claim.

[00:29:50] Speaker 05:
We want to investigate if it's true.

[00:29:51] Speaker 05:
The theory is we have state law liability that can exist on top of the federal law.

[00:29:55] Speaker 05:
And so we hear arguments from the other side saying, well, gosh, if that's true, we're going to have basically, you know, litigation about every airport in the Ninth Circuit and we'll be exposing, you know, passengers and companies and everyone involved in this to different legal standards.

[00:30:11] Speaker 05:
How do you address that?

[00:30:13] Speaker 01:
Well, we address it that, again, that's hypothetical, and we allege that the SeaTac airport is unusual.

[00:30:21] Speaker 01:
That's in the complaint that you obviously have read a couple times.

[00:30:24] Speaker 01:
It's unusual in that it only goes one way.

[00:30:28] Speaker 01:
So most airports, you can come in from north, south, east, and west.

[00:30:32] Speaker 01:
But because of the unique one-way aspect of SeaTac, which we allege, and because it's kind of in a valley, there's a unique circumstance of accumulation of pollution.

[00:30:44] Speaker 05:
But aren't the routes into that essentially federally prescribed?

[00:30:47] Speaker 05:
I mean, somebody can't fly into it a different way under federal law.

[00:30:50] Speaker 01:
That's right.

[00:30:51] Speaker 01:
But I'm responding now to the argument, this is going to happen everywhere.

[00:30:55] Speaker 01:
Now they said that two years ago when we were arguing the motion to dismiss.

[00:30:59] Speaker 01:
We won the motion to dismiss.

[00:31:01] Speaker 01:
No one's filed a case.

[00:31:03] Speaker 01:
And one of the reasons I think is because CTAC is very unusual.

[00:31:06] Speaker 01:
So you're not gonna see this patchwork threatening the airline industry all over the place.

[00:31:13] Speaker 01:
And on that issue, I think why procedure matters is we don't know, this goes to both ADA preemption and Clean Air Act preemption.

[00:31:23] Speaker 01:
We don't know exactly how the airlines would respond.

[00:31:27] Speaker 01:
They say that we're trying to change flight paths, or they will have to change flight paths.

[00:31:31] Speaker 01:
We're saying, no, keep flying.

[00:31:34] Speaker 01:
We're happy.

[00:31:35] Speaker 05:
But does it matter?

[00:31:36] Speaker 05:
I mean, if it's keep flying, but pay money in order to fly the routes that you're federally prescribed, doesn't that raise the same preemption issue?

[00:31:43] Speaker 01:
I don't think it does, because there's nothing in any of the preemption arguments they cite to that suggests that, again, we have a presumption against preemption, that Congress wanted to take away the tort remedies that we are asserting on behalf of our clients, that Congress expressly or impliedly intended that people who are poisoned

[00:32:09] Speaker 01:
by these flights are remedious.

[00:32:12] Speaker 00:
Wait, stop right there.

[00:32:14] Speaker 00:
People who are poisoned, if they are poisoned from an emission of an air pollutant from the aircraft or the aircraft engine, that is lamentable, but why isn't that preemptive?

[00:32:29] Speaker 01:
because you look to see whether what we're doing under the ADA is trying to change, the words are, whether the state law is a law related to a price, route, or service.

[00:32:43] Speaker 05:
I think we're back to the Clean Air Act.

[00:32:44] Speaker 05:
We're jumping around here, but I think we're back to the Clean Air Act.

[00:32:48] Speaker 01:
I have so many interceptor missiles fired at me that it's hard to keep them all straight.

[00:32:54] Speaker 00:
I think the question is... The question is, under the Clean Air Act, if there's some terrible

[00:33:00] Speaker 00:
poisonous emission that is coming from the aircraft.

[00:33:05] Speaker 00:
Why isn't that an air pollutant from the aircraft or aircraft engine and then therefore preempted under the CAA?

[00:33:19] Speaker 01:
Because under California versus Navy, what the court there said is, A, you have to look at whether there's a way to get some relief that doesn't change the operation of the aircraft.

[00:33:34] Speaker 01:
Okay, that's directly out of.

[00:33:36] Speaker 00:
Right, but it seems to me that the Navy case is pretty, you got an aircraft engine or you got some testing sitting on in a hanger on the ground somewhere and that's very different.

[00:33:47] Speaker 00:
than any of the other cases.

[00:33:49] Speaker 01:
Well, let's take the Montavo case.

[00:33:52] Speaker 01:
In the Montavo case, what the court there said is, well, the airlines have not yet produced any evidence that reconfiguration of the seating would have a material impact on federal deregulation.

[00:34:06] Speaker 01:
And we're in the same stage here.

[00:34:08] Speaker 01:
The airlines have not put forward any evidence, any declarations.

[00:34:11] Speaker 01:
And we don't know that if we went and

[00:34:14] Speaker 01:
pursue this lawsuit, that there would be a material impact on services, on pricing, or on routing.

[00:34:24] Speaker 01:
There could be no impact on routing because they're just going to keep flying.

[00:34:29] Speaker 01:
The fact that there might be an impact on pricing, this court has said is not enough.

[00:34:33] Speaker 00:
Well, you know, and now we talk about incoming missiles, you're jumping provisions there as well.

[00:34:40] Speaker 00:
You know, we were talking about the Clean Air Act as the

[00:34:44] Speaker 00:
foundational preemption, at least initially.

[00:34:46] Speaker 00:
And then, of course, we have the ADA as well.

[00:34:54] Speaker 00:
Tell me this.

[00:34:58] Speaker 00:
What is the discovery that you would set out to get to the issue that, in your view, would preempt preemption?

[00:35:10] Speaker 01:
Good question.

[00:35:11] Speaker 01:
Number one, we would want discovery from the airlines and the port on the flaking issue.

[00:35:19] Speaker 01:
Is the flaking regulated?

[00:35:20] Speaker 01:
Is it authorized?

[00:35:22] Speaker 01:
What do you know about it?

[00:35:24] Speaker 01:
With respect to the emissions, we would want to know what are the emissions and how do they compare with what you were allowed?

[00:35:32] Speaker 01:
And then we would want our experts to postulate or explain to the district court

[00:35:41] Speaker 01:
which is what's contemplated by the Navy case, is there a way to come to a resolution that doesn't cause a change in the aircraft engine?

[00:35:51] Speaker 00:
Let's say that they've exceeded emission standards, whether under the EPA or some FAA authorized manufacturing authority.

[00:36:04] Speaker 00:
Wouldn't that then be a federal suit on

[00:36:08] Speaker 00:
violation of those regulations and not a state court claim?

[00:36:13] Speaker 01:
Well, I think we could, I would still maintain my state court claims and use the violation of the admissions regulations as a predicate, additional predicate for those claims.

[00:36:27] Speaker 01:
Could I just

[00:36:29] Speaker 03:
Trigger off Judge McEwen's question there about the state law claims.

[00:36:34] Speaker 03:
So what is the theory, the negligence theory, let's say, with respect to Alaska?

[00:36:40] Speaker 03:
Why was?

[00:36:41] Speaker 01:
I don't have a negligence theory.

[00:36:43] Speaker 03:
You don't have a negligence theory?

[00:36:44] Speaker 01:
I think our claims are trespass, nuisance.

[00:36:46] Speaker 03:
You didn't allege negligence?

[00:36:49] Speaker 01:
Off the top of my head, I'm not recalling that.

[00:36:53] Speaker 01:
But the gravamen of our case

[00:36:56] Speaker 01:
is an unwanted intrusion on our property.

[00:36:59] Speaker 01:
That's a classic trespass, nuisance, and inverse condemnation claim.

[00:37:05] Speaker 01:
You're taking my property.

[00:37:07] Speaker 01:
If there's a negligence claim, I'm sorry I don't recall it.

[00:37:10] Speaker 01:
And so what I claim, what we claim, the airlines have done unlawfully is to enter our property and damage our property.

[00:37:20] Speaker 03:
That's a trespass.

[00:37:21] Speaker 01:
That's a trespass.

[00:37:24] Speaker 03:
And what's the nuisance?

[00:37:25] Speaker 01:
Same thing.

[00:37:27] Speaker 01:
It's a nuisance.

[00:37:28] Speaker 03:
To enter the property.

[00:37:29] Speaker 01:
To enter the property in an unwanted fashion.

[00:37:32] Speaker 01:
I tried a nuisance trespass case against the court.

[00:37:37] Speaker 01:
But is the whole focus of the case just clean up?

[00:37:40] Speaker 01:
Yes.

[00:37:41] Speaker 01:
That's why I don't think the preemption is an issue.

[00:37:43] Speaker 01:
We don't care.

[00:37:45] Speaker 01:
Just clean up.

[00:37:46] Speaker 01:
Clean up after yourself.

[00:37:47] Speaker 01:
Keep flying.

[00:37:49] Speaker 01:
Don't change prices.

[00:37:50] Speaker 01:
Don't change routes.

[00:37:52] Speaker 01:
Just, if you're gonna dump your material on us, your poison on us, clean it up.

[00:37:56] Speaker 05:
But doesn't the statute direct us to the source of this?

[00:37:58] Speaker 05:
I mean, the Clean Air Act in particular is asking, refers to emission of any air pollutant from any aircraft or engine.

[00:38:09] Speaker 05:
So it may be that you would like cleanup, but is it not still the case that we're talking about emissions from an aircraft or an engine?

[00:38:17] Speaker 01:
Well, we are in part.

[00:38:18] Speaker 01:
Again, I don't believe that they've established that the flaking is an omission, rather than.

[00:38:25] Speaker 05:
But the flaking, I think it's, flaking is a kind of generic term, and when you hear it, you might think of something that's a bigger flake, but the allegations and the complaint are really about fine particulate matter.

[00:38:34] Speaker 05:
That's what's pled.

[00:38:38] Speaker 01:
But if you read the, well, it's actually pled differently.

[00:38:42] Speaker 01:
with respect to the materials coming out of the back of the plane, we recognize those are emissions, as the word is used in section 233.

[00:38:50] Speaker 01:
As for the particulate matter that's flaking, that's not an emission, and I don't think they've established that that's considered emission.

[00:38:58] Speaker 03:
I hate to sort of dwell on matters that may be unimportant, but as I look at the complaint, which I have right in front of me,

[00:39:11] Speaker 03:
Resident class claims count one negligence alleged by plaintiffs against all defendants on behalf of the resident class Okay, I stand corrected right and they have another one against the other and so I would say the negligent act is Depositing poison on my clients property without the admissions without cleaning it up.

[00:39:35] Speaker 03:
Yes, whatever comes out of the plane.

[00:39:36] Speaker 01:
Yes How could that be how could that be negligence?

[00:39:41] Speaker 01:
because you're not cleaning it up.

[00:39:43] Speaker 01:
You know that you're hurting me.

[00:39:46] Speaker 01:
You know from these studies that you're poisoning me.

[00:39:47] Speaker 03:
Wait a minute.

[00:39:48] Speaker 03:
So negligence, you know, a basic negligence claim rests on duty.

[00:39:56] Speaker 03:
So what's the basis of the duty here?

[00:40:00] Speaker 01:
I think they have, if they're operating over someone's property, they have a duty of care.

[00:40:04] Speaker 01:
And they breach that duty of care by poisoning these people and not cleaning it up.

[00:40:12] Speaker 01:
And on the CAA preemption argument, I would point out to your honor, the Silkwood case, where the court in the Silkwood case that says even where the federal government comprehensively regulates an industry, Congress assumed that state law remedies in whatever form they might take were available to those injured.

[00:40:33] Speaker 01:
And I think that it would be an extraordinary broad reading of the CAA to say

[00:40:38] Speaker 01:
It gives them immunity from doing what they did.

[00:40:40] Speaker 01:
I mean you've you've obviously read all this is not a good situation.

[00:40:44] Speaker 01:
This is a underprivileged community That's been poisoned and the notion that they can't do anything about it.

[00:40:51] Speaker 01:
I think it's pretty extraordinary it's an extraordinary for immunity and again all the district court Judge did on these issues was to say we don't really know what's going on here.

[00:41:03] Speaker 01:
So I'm going to take a pragmatic approach and

[00:41:05] Speaker 01:
And on a facial attack, you didn't properly make it because we did not plead into the affirmative defense.

[00:41:13] Speaker 01:
We avoided it.

[00:41:14] Speaker 01:
So let's go back and find out what's going on there.

[00:41:18] Speaker 01:
And so I know I have more time.

[00:41:20] Speaker 03:
Could you explain to me the theory of your inverse condemnation claim?

[00:41:25] Speaker 01:
Yes, that under Washington law, that

[00:41:29] Speaker 01:
there's really an overlap between nuisance and trespass and condemnation.

[00:41:34] Speaker 01:
And you've come and taken or diminished the value of my property, and that's a taking, which the district court upheld that claim.

[00:41:45] Speaker 01:
And I actually tried a taking case on the same theory against the Port of Seattle in this very courtroom about 12 years ago.

[00:41:53] Speaker 01:
And our theory was condemnation and nuisance and trespass.

[00:41:57] Speaker 01:
Those are kind of the basic claims you see in any airport noise or lawsuit relating to the airports.

[00:42:09] Speaker 01:
So unless you have any further questions, Your Honors, I think I've covered what I want to cover.

[00:42:16] Speaker 01:
Okay.

[00:42:17] Speaker 05:
Thank you, Mr. Browning.

[00:42:19] Speaker 05:
So we'll hear first from Mr. Dabaretsky.

[00:42:28] Speaker 04:
Thank you.

[00:42:29] Speaker 04:
Let me start with Judge Paez's question about how you read the complaint.

[00:42:32] Speaker 04:
It's not about how you read the complaint.

[00:42:34] Speaker 04:
It's about how you understand the complaint as a matter of law.

[00:42:36] Speaker 04:
And I thought the colloquy with Mr. Berman was very instructive on that.

[00:42:39] Speaker 04:
The duty of care isn't the failure to clean.

[00:42:42] Speaker 04:
It doesn't come from the failure to clean up.

[00:42:43] Speaker 04:
The duty of care would be, under Washington law, not to pollute in the first place.

[00:42:48] Speaker 04:
But the alleged pollution is a result of, again, flying federally regulated aircraft and engines on federally regulated flight paths.

[00:42:57] Speaker 04:
Second, with respect to the question that you asked Judge Paez, is anyone responsible?

[00:43:02] Speaker 04:
We detail in our brief at pages 17 to 20, all of the ways in which the EPA and the FAA, the agencies themselves, take into account the effects of emissions on surrounding neighborhoods, including at SeaTac in particular.

[00:43:15] Speaker 04:
And as to the preemption question, the Supreme Court held in the city of Burbank that an ordinance about late night takeoffs was preempted even though Congress hadn't set up any sort of a scheme where the neighborhoods who are affected by the late night takeoffs could recover.

[00:43:29] Speaker 04:
So that doesn't affect the preemption analysis.

[00:43:32] Speaker 04:
With respect to discovery, the court asked Mr. Berman, what would you like to get in discovery?

[00:43:37] Speaker 04:
I wrote down three things that he listed.

[00:43:40] Speaker 04:
One, is flaking regulated?

[00:43:42] Speaker 04:
That's not a fact question.

[00:43:43] Speaker 04:
That's a question of law and it's plainly covered by the Clean Air Act.

[00:43:46] Speaker 04:
Second, what are the emissions and were they allowed?

[00:43:49] Speaker 05:
Pause there on the flaking.

[00:43:51] Speaker 05:
So there are arguments being made maybe that flaking is not covered by the Clean Air Act.

[00:43:56] Speaker 05:
So elaborate on this point for us.

[00:44:00] Speaker 04:
The Queen Air Act, again, covers any air pollutant from any aircraft or engine.

[00:44:06] Speaker 04:
So I'd focus on two things about that language.

[00:44:09] Speaker 04:
One, the Queen Air Act covers things not just from the engine, but from the aircraft.

[00:44:14] Speaker 04:
Thinking of flaking as something that comes from the aircraft is the ordinary understanding of that language.

[00:44:19] Speaker 04:
Second, the Queen Air Act defines air pollutant.

[00:44:22] Speaker 04:
Again, it's 42 USC 7602G.

[00:44:24] Speaker 04:
It's quite a broad definition.

[00:44:26] Speaker 04:
It's any air pollutant agent or matter which is emitted into or otherwise enters into the ambient air.

[00:44:32] Speaker 04:
As the court's question suggested, when you read their complaint, they're talking about very fine matter, very fine soot.

[00:44:38] Speaker 04:
that comes from the aircraft, that is under the plain language of the statute, an emission from the aircraft.

[00:44:45] Speaker 00:
An airplane wing would not be covered by this?

[00:44:48] Speaker 04:
I don't think as a matter of ordinary reading of that statute that that would be considered.

[00:44:53] Speaker 00:
Somewhere between.

[00:44:55] Speaker 00:
tiny flakes and big airplane parts.

[00:44:58] Speaker 04:
Wherever that line is, if you think there is one, again, the language of their complaint is talking about very fine soot and very fine particulate matter that comfortably fits within this statutory definition, which to the court's questions to Mr. Peters, I think that's the easiest way to resolve this case, although I think impossibility preemption is a close second in my view.

[00:45:16] Speaker 03:
So how do you respond to Mr. Berman's argument that, you know, when they pled that when they alleged

[00:45:22] Speaker 03:
drafted the complaint and made their allegations.

[00:45:24] Speaker 03:
They were sensitive to, I gathered from what I took from them is that they were sensitive to these preemption issues.

[00:45:31] Speaker 03:
And they were careful not to only allege state law claims and to craft the complaint in a way that they thought would survive.

[00:45:41] Speaker 03:
And the district court seemed to go along with that.

[00:45:44] Speaker 03:
The district court agreed that preemption is a defense.

[00:45:49] Speaker 03:
The allegations in the complaint don't really

[00:45:52] Speaker 03:
get to the factual predicates for preemption.

[00:45:56] Speaker 03:
And it's really your burden to come forward.

[00:46:00] Speaker 03:
And you didn't come forward with any evidence, so we just look at the allegations in the complaint.

[00:46:04] Speaker 03:
That's all we have.

[00:46:06] Speaker 03:
How do you respond to his concern?

[00:46:08] Speaker 04:
That's just not how preemption law works.

[00:46:12] Speaker 04:
I'm glad that they were sensitive to the preemption problem.

[00:46:14] Speaker 04:
I don't think they've overcome it.

[00:46:17] Speaker 04:
Is preemption a defense?

[00:46:18] Speaker 04:
I'm sorry?

[00:46:19] Speaker 04:
Is it a defense?

[00:46:20] Speaker 04:
It is a defense.

[00:46:21] Speaker 03:
OK.

[00:46:21] Speaker 04:
But if you look at how the Supreme Court has analyzed preemption in cases like PLEVA and Bartlett, the pharmaceutical cases, the question is not, is there some hypothetical way that maybe you could come up with that you could comply with both state and federal law?

[00:46:40] Speaker 04:
The question is, you take federal law as you find it.

[00:46:43] Speaker 04:
What does federal law require?

[00:46:44] Speaker 04:
And is the state law cause of action is complying with the state law duties as the plaintiff see them?

[00:46:52] Speaker 04:
Is that putting you in conflict with federal law?

[00:46:55] Speaker 04:
And here again, their complaint, if you read it,

[00:46:59] Speaker 04:
is dependent on emissions.

[00:47:00] Speaker 04:
That's the basis for the duty to clean up in the first place.

[00:47:03] Speaker 04:
That makes it a state law standard respecting emissions.

[00:47:06] Speaker 04:
And it also puts them in conflict with the extensive federal regulations about routes, about airport flight paths, aircraft design, emissions from the engines, and so forth.

[00:47:19] Speaker 04:
And none of this would be unique to see tech.

[00:47:22] Speaker 03:
If you look at any other airport in the country, if you look, the district court said, you know, that's, that's just all remedy, you know, that, that maybe if that's what they're asking for, then maybe this is all preempted, but it's too soon to make that decision.

[00:47:36] Speaker 03:
How do you respond to what the district court did?

[00:47:39] Speaker 04:
Candidly, I don't understand that logic because I don't understand, as I think your own question suggested to Mr. Berman, I don't understand how you can separate out the remedy from there being an underlying state law duty.

[00:47:52] Speaker 04:
The state law duty, this goes back to my example with my neighbor.

[00:47:56] Speaker 04:
My neighbor is not upset with me because I haven't paid his medical expenses.

[00:47:58] Speaker 04:
My neighbor would be upset with me if I punched him.

[00:48:01] Speaker 04:
Here, the state law duty that they're alleging

[00:48:04] Speaker 04:
has to be not to pollute.

[00:48:06] Speaker 04:
It doesn't matter what words they put on the page of their complaint, whether they phrased it differently on the page of the complaint.

[00:48:11] Speaker 04:
Paper doesn't refuse ink.

[00:48:12] Speaker 04:
You can write it in the complaint to say, oh, we're really challenging the cleanup costs.

[00:48:16] Speaker 04:
But the only way to understand that as a matter of law is that what you are challenging is the unlawful conduct that precipitated the cleanup costs in the first place.

[00:48:25] Speaker 04:
And if Washington law makes it unlawful to emit at certain levels when approaching the airport,

[00:48:32] Speaker 04:
That directly conflicts with federal law.

[00:48:34] Speaker 04:
And nothing about that is unique to SeaTac.

[00:48:37] Speaker 04:
If you look at any other airport in the country, sure, there are flight paths that are set in advance, but that's also going to be dependent on what air traffic control says with respect to weather and the other flights in the area, et cetera.

[00:48:48] Speaker 04:
And so it's not like when you approach SeaTac, the pilots can only go one way, right?

[00:48:52] Speaker 04:
There's going to be some variation on that based on the conditions.

[00:48:55] Speaker 04:
There's nothing unique about SeaTac in that respect.

[00:48:57] Speaker 04:
that would prevent this sort of lawsuit from proliferating everywhere in the country.

[00:49:01] Speaker 04:
As to why it hasn't come up in the last couple of years, well, the complaint was brought.

[00:49:05] Speaker 04:
I do think it has obvious preemption problems that they were sensitive to, and this court granted review.

[00:49:11] Speaker 04:
And so I think if this court were to affirm, that is what would lead to the sorts of problems that we're forecasting.

[00:49:18] Speaker 05:
Okay.

[00:49:18] Speaker 05:
Thank you.

[00:49:19] Speaker 05:
Thank you.

[00:49:20] Speaker 05:
We'll hear from Mr. Tehrani, who has the last word here.

[00:49:27] Speaker 02:
Thank you, Your Honor.

[00:49:28] Speaker 02:
On the inverse condemnation claim against the port, all of the arguments that Delta and Alaska have made this morning apply with equal force to the inverse condemnation claim.

[00:49:39] Speaker 02:
Plaintiffs have never argued to the contrary.

[00:49:42] Speaker 02:
On the timing of this court's resolution of the issues in this case, this court and the Supreme Court regularly dismiss cases

[00:49:52] Speaker 02:
on preemption grounds based on 12b6.

[00:49:56] Speaker 02:
In the ADA context, the US Supreme Court did that in Wallins.

[00:50:00] Speaker 02:
It did that in Ginsburg.

[00:50:01] Speaker 02:
This court did it in in-ray Korean airlines.

[00:50:04] Speaker 02:
In the implied preemption context, this court dismissed aviation-related claims on implied preemption grounds.

[00:50:12] Speaker 02:
on 12b6 grounds in Montalvo and in National Federation for the Blind.

[00:50:18] Speaker 02:
The simple fact is that there are no facts that can change the fundamental truth about this complaint.

[00:50:26] Speaker 02:
which is that it is a direct attack on the defendant's ordinary flight operations into and out of SeaTac.

[00:50:34] Speaker 02:
There are no facts that can change the fundamental truth that the plaintiffs are seeking to override the FAA's expert judgment about the flight paths and the altitudes that the defendant should fly.

[00:50:48] Speaker 02:
And there are no facts that can change the fundamental truth that the plaintiffs are seeking to use state law to second guess the EPA's determination about permissible emissions standards.

[00:51:01] Speaker 02:
The failure to clean up theory that plaintiffs have developed on appeal

[00:51:06] Speaker 02:
can't cover up, can't conceal the fact that this complaint is challenging emissions from ordinary flight operations.

[00:51:15] Speaker 02:
What the defendants have supposedly failed to clean up is the ordinary byproduct of flights into and out of SeaTac along federally prescribed flight paths at federally prescribed altitudes.

[00:51:28] Speaker 02:
For all of these reasons, this complaint is preempted multiple times over.

[00:51:34] Speaker 05:
Thank you.

[00:51:35] Speaker 05:
We thank all of you for your arguments.

[00:51:36] Speaker 05:
This is one of those cases that has a lot of lawyers working on it, and I'm sure there's some younger lawyers who were working on it too, so we thank them for their work.

[00:51:43] Speaker 05:
This case is submitted.

[00:51:44] Speaker 05:
We'll stand in recess until tomorrow morning.