Appeals court rules Clean Air Act preempts residents' Sea-Tac pollution claims

SEATTLE, Sept 23 — The U.S. Court of Appeals for the Ninth Circuit ruled that the Clean Air Act preempts state law claims by residents living under Seattle-Tacoma Airport flight paths, reversing a district court's refusal to dismiss their suit.

Five residents who live within a five-mile radius of the airport sued Alaska Air Group, Delta Airlines and the Port of Seattle. They sought cleanup of and payment for pollution from aircraft engine exhaust and from particulate matter that they said flakes off aircraft bodies. The proposed classes include over 300,000 individuals, according to the opinion.

The claims included negligence, battery, trespass, public nuisance and inverse condemnation. The residents sought damages, remediation of property and a medical monitoring program.

In the opinion, Judge Richard A. Paez wrote that the claims are expressly preempted by Section 233 of the Clean Air Act. That section bars states from enforcing any standard "respecting emissions of any air pollutant from any aircraft or engine thereof" unless the standard is identical to a federal one.

The panel said Section 233 lets states enforce standards identical to the Environmental Protection Agency's (EPA) aircraft emission standards. However, the complaint did not allege that the defendants were violating federal law. According to the opinion, the plaintiffs' lawyers said at oral argument that they left out that allegation because they did not have enough supporting evidence.

"Whatever the reason, the choice to omit such allegations is fatal to the complaint," the opinion said.

The panel rejected Delta's argument that the suit was an improper collateral attack on agency orders. It found that the district court had properly exercised jurisdiction.

The court sent the case back to the district court for further proceedings.