On March 12, 2026, a division of the Colorado Court of Appeals issued a significant opinion concerning federal preemption, aviation law, and environmental nuisance. In Town of Superior v. Board of County Commissioners of Jefferson County, 2026 COA 14, the division held that federal law preempts a state court from ordering an airport proprietor to ban certain aircraft operations as a noise abatement measure, even though the proprietor itself retains the authority to impose such restrictions voluntarily. The division remanded the case for further consideration regarding whether the federal Clean Air Act separately preempts the plaintiffs’ claim for injunctive relief to abate lead emissions from aircraft.
Background
The Town of Superior and the Board of County Commissioners of Boulder County (together, the “Plaintiffs”) sued the Board of County Commissioners of Jefferson County and the Airport Director of the Rocky Mountain Metropolitan Airport (the “Airport”), alleging that certain aircraft operations at the Airport caused excessive noise and hazardous lead exposure for their residents. Specifically, Plaintiffs challenged nearby “touch-and-go” operations—a common flight training maneuver in which an aircraft lands and immediately takes off again without stopping—performed by piston-engine aircraft, a type of small plane that typically uses leaded fuel. As alleged by Plaintiffs, these touch-and-go maneuvers result in excessive noise and hazardous lead exposure because the aircraft, when performing such maneuvers, fly at lower altitudes and at lower speeds than they otherwise would.
Plaintiffs brought a public nuisance claim and sought an injunction requiring Jefferson County to prohibit touch-and-go operations by piston engine aircraft at the Airport. Jefferson County moved to dismiss under C.R.C.P. 12(b)(5), arguing that federal law preempts state and local regulation of aircraft operations, noise levels, and emissions. The district court granted the motion, concluding that federal law preempts any local or state limitation on aircraft flight operations, including limitations on noise abatement or lead pollution.
The Division’s Federal Preemption Analysis
On appeal, a division of the Colorado Court of Appeals reaffirmed the well-established principle that federal law preempts state and local regulation of aircraft noise. Under City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624 (1973), the U.S. Supreme Court held that the Federal Aviation Act and related statutes create a “comprehensive scheme of federal control of the aircraft noise problem” that preempts state and local control. Here, the Plaintiffs did not seriously contest this premise and acknowledged that state and local governments cannot regulate aircraft noise via their police powers.
The division next addressed the “proprietor’s exception,” under which a governmental entity that owns and operates an airport may, in its role as airport proprietor, impose certain noise restrictions that it could not impose through the exercise of its police powers. This exception originates from a footnote in City of Burbank and was previously recognized by the Colorado Supreme Court in Arapahoe County Public Airport Authority v. Centennial Express Airlines, Inc., 956 P.2d 587 (Colo. 1998). The division assumed, without deciding, that Jefferson County had the authority as airport proprietor to prohibit touch-and-go operations if it chose to do so.
The critical question—and the one on which the case turned—was whether a state court could order an airport proprietor to exercise its proprietary authority and impose noise restrictions. The division concluded it could not.
The division drew a clear distinction between a restriction voluntarily adopted by an airport proprietor and a restriction imposed on the proprietor by a court. An injunction, the division reasoned, is not a restriction imposed by the airport proprietor; it is a restriction imposed on the proprietor by a court. A state court has no greater authority to impose such a restriction in an area of federal preemption than does a state or local legislative body. To hold otherwise would authorize state governmental control over aircraft noise, a result that City of Burbank forbids.
In reaching this conclusion, the division relied heavily on Northeast Phoenix Homeowners’ Ass’n v. Scottsdale Municipal Airport, 636 P.2d 1269 (Ariz. Ct. App. 1981), in which the Arizona Court of Appeals rejected an analogous argument and held that “rules mandated by a court through its injunctive powers would in no sense emanate from the airport proprietor.” The division rejected Plaintiffs’ attempts to distinguish Scottsdale Municipal Airport, finding that none of their arguments undermined the case’s fundamental holding that a state court cannot do through an injunction what a state legislative body could not do through legislation.
The Colorado Court of Appeals also noted that Plaintiffs failed to cite a single case in which a state court had enjoined aircraft flight operations—or required an airport proprietor to do so—to abate aviation noise. Rather, the cases on which Plaintiffs relied generally involved one of three distinguishable scenarios: (1) a restriction imposed by the airport proprietor itself, (2) a claim for damages, or (3) a land use regulation prohibiting the use of property as an airport.
Remand on the Clean Air Act Issue
As to the lead emissions component of Plaintiffs’ claim, the division reversed the district court’s dismissal and remanded for further proceedings. The division noted that City of Burbank is limited to federal preemption of state and local aviation noise control and says nothing about federal preemption of state and local aviation pollution control. However, Jefferson County had argued before the district court that a provision of the Clean Air Act, 42 U.S.C. § 7573, expressly preempts state or local authority to “adopt or enforce any standard respecting emissions of any air pollutant from any aircraft or engine thereof” that differs from a federal standard. Because the district court had not addressed this argument, and because the controlling question—whether an emissions-based restriction on aircraft operations is a “standard respecting emissions”—is a novel one with no on-point authority in Colorado or elsewhere, the division declined to resolve it in the first instance and remanded for further proceedings.
The case is Town of Superior v. Board of County Commissioners of Jefferson County, 2026 COA 14, ___ P.3d ___. The decision was authored by Judge Schock with Judges Grove and Yun concurring.
For questions about this legal alert, please contact a member of the Davis Graham Appellate Group.