Khodara Environm Ental, Inc., General Partner, on Behalf of Eagle Environmental, L.p v. Marion Blakey

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 02-4038
KHODARA ENVIRONM ENTAL, INC.,
GENERAL PARTNER, ON BEHALF
OF EAGLE ENVIRONMENTAL, L.P.
v.
*MARION BLAKEY; FEDERAL
AVIATION ADMINISTRATION;
CLEARFIELD-JEFFERSON
COUNTIES REGIONAL
AIRPORT AUTHORITY; DONALD R.
JOHNSON; PAUL SEKULA;
WILLIAM MIKSICH; FREDERICK G.
MURRAY; TIM MORGAN;
ROBERT E. REITZ; HENRY DEIBLE;
PAUL MCMILLEN;
MARK MCKINLEY;
JEFFERSON COUNTY; PINE CREEK
TOWNSHIP (Intervenor-defendants in
D.C.)
(D.C. No. 97-cv-00093E)
LEATHERWOOD, INC.
v.
THE PENNSYLVANIA
DEPARTMENT OF
ENVIRONMENTAL
PROTECTION; JEFFERSON
COUNTY, PENNSYLVANIA;
PINECREEK TOWNSHIP; FEDERAL
AVIATION ADMINISTRATION;
**MARION BLAKEY
(D.C. No. 01-cv-00018E)
Khodara Environmental, Inc.,
Appellant
*(Amended per Clerk's Order dated
01/16/03)
**(Amended per Court's Order dated
08/11/03)
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF
PENNSYLVANIA
(Dist. Court No. 97-cv-00093E
and 01-cv-00018E)
District Court Judge: Honorable Sean
McLaughlin
Argued: October 24, 2003
Before: ALITO, FUENTES, and
BECKER, Circuit Judges.
(Opinion Filed: July 21, 2004)
William F. Fox, Jr., Esq. (argued)
J.P. Mascaro & Sons
320 Godshall Drive
Hurleysville, PA 19438
Attorney for Appellant

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Teal Luthy Miller, Esq. (argued)
Scott R. McIntosh, Esq.
United States Department of Justice
601 D Street N.W.
Washington, DC 20530
Attorney for Appellee Federal
Aviation Administration and Marion
Blakey
Robert P. Ging, Jr., Esq. (argued)
2095 Humbert Road
Confluence, PA 15424
Attorney for Appellees Jefferson
City and Township of Pine Creek
OPINION OF THE COURT
ALITO, Circuit Judge:
Khodara Environmental, Inc., the
general partner of a company (Eagle
Environmental, L.P.) that wishes to
develop the “Happy Landing Landfill” in
Jefferson County, Pennsylvania, contests
the District Court’s denial of its request for
a declaratory judgment that the Wendell H.
Ford Aviation Investment and Reform Act
for the 21st Century (“the Wendell Ford
Act”) does not prohibit the landfill. The
Federal Aviation Administration (“FAA”),
Jefferson County, and Pine Creek
Township argue that the Wendell Ford Act
does prohibit the landfill. In addition, the
FAA argues that Khodara and Eagle
(hereinafter collectively “Eagle”) lack
Article III standing and that their claim is
not ripe. For the reasons stated below, we
reverse and remand for the entry of the
declaratory judgment Eagle sought.
I.
For some time now, Eagle has
desired to develop a solid waste disposal
facility on land that it owns in Jefferson
County. The facility, which is located
approximately 5.25 miles from the Dubois-
Jefferson County Airport, was intended to
accept municipal waste primarily from out-
of-state producers. In the early 1990s,
Eagle began to apply to the Pennsylvania
Department of Environmental Protection
(hereinafter “DEP”) for permits that were
needed to operate the facility, and the DEP
issued all of the permits that were
required. See Khodara Envtl., ex rel.
Eagle Envtl. v. Beckman, 237 F.3d 186,
189 & n.1 (3d Cir. 2001)(“Khodara I”).
After receiving these permits, Eagle took
steps to develop the facility, including
obtaining engineering studies of the site,
installing 12 groundwater monitoring
wells, beginning work on an access road,
and installing a perimeter silt fence.
In September 1996, however, the
Pennsylvania Fish and Boat Commission
designated three tributaries near the
landfill site as wild trout streams. As a
result, the DEP determined that wetlands
in and around Happy Landing Landfill
were of such an exceptional value that they
should not be filled. Shortly thereafter, the
DEP revoked authorization to fill in any
wetlands and suspended the other permits.
Eagle appealed to the Environmental
Hearing Board. While the appeal was
pending, Eagle and the DEP entered into a

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consent order and agreement that released
the bonds that Eagle had submitted in the
process of obtaining one of its permits. In
exchange, Eagle agreed not to construct or
operate the landfill until that permit was
reinstated and the applicable bonding
requirements were met. In September
1998, the Environmental Hearing Board
issued an administrative order affirming
the DEP’s suspension order. See Eagle
Envtl. L.P. v. Commonwealth of Pa. Dep’t
of Envtl. Protection, EHB Docket. No. 96-
215-MG, 1998 WL 612838 (Pa. Hrg. Bd.
Sept. 3, 1998). This decision was affirmed
by the Pennsylvania Commonwealth
Court, see Eagle Envtl. L.P. v.
Commonwealth of Pa. Dep’t of Envtl.
Protection, No. 2704 C.D. 1998 (Pa.
Commw. Ct. 2001); App. at 122, and the
DEP’s suspension order became final
when the Pennsylvania Supreme Court
denied further review. See Eagle Envtl.
L.P. v. Commonwealth of Pa. Dep’t of
Envtl. Protection, 800 A.2d 934 (Pa.
2002); App. at 9a.
In October 1996, while these state
proceedings were in progress, Congress
e n a c t e d t h e F e d e r a l A v i a t i o n
Reauthorization Act of 1996 (“FARA”),
Pub. L. No. 104-264, 110 Stat. 3213.
Section 1220 of FARA, which was drafted
by two members of the House of
Representatives from the area near the
Happy Landing Landfill site, was
apparently “intended to single out Happy
Landing Landfill for regulation.” See
Khodara I, 237 F.3d at 190 n.4. Because
landfills tend to attract birds and because
birds can present a safety problem for
aircraft flying at low altitudes, the FAA
regulates the development of landfills near
airports. It appears that the Happy
Landing Landfill site was permitted by the
FAA regulations in effect before FARA
was enacted, see id. at 189 n. 3, but
Section 1220 of FARA imposed an
additional restriction that applied only
under very narrow circumstances.
Section 1220 provided in relevant
part:
For the purpose of
enhancing aviation safety, in
a case in which 2 landfills
have been proposed to be
constructed or established
within 6 miles of a
commercial service airport
with fewer than 50,000
emplanements per year no
person shall construct or
establish either landfill if an
official of the Federal
Aviation Administration has
stated in writing within the
3-year period ending on the
date of enactment of this
subsection that 1 of the
l a n d f i l l s w o u l d b e
incompatible with aircraft
operations at the airport,
unless the landfill is already
active on such date of
enactment or the airport
operator agrees to the
c o n s t r u c t i o n o r
establishment of the landfill.

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49 U.S.C. § 44718(d) (amended by Pub. L.
No. 106-181, § 503(b), 114 Stat. 61, 133
(2000) (codified at 49 U.S.C. § 44718(d))).
Since the Dubois-Jefferson County Airport
was a “commercial service airport with
fewer than 50,000 emplanements per year”
and since two landfills (Happy Landing
Landfill and one other) had been proposed
for construction within six miles of the
airport, Section 1220 was potentially
applicable to that airport. Moreover,
according to a statement attributed to one
of the sponsors of this provision, the
DuBois-Jefferson County Airport was the
only airport in the country to which
Section 1220 applied. See Khodara I, 237
F.3d at 190 n.4.
After FARA was enacted, Eagle
commenced this action, seeking, among
other things, a declaration that Section
1220 was unconstitutional and that it did
not apply to the Happy Landing Landfill.
In March 1999, the District Court granted
partial summary judgment in favor of
Eagle, holding that Section 1220 failed
rational-basis review under the Equal
Protection Clause. See Khodara Env’t,
Inc. v. Beckman, 91 F. Supp. 2d 827, 850-
57 (W.D. Pa. 1999). Although the Court
found that the government had a legitimate
interest in preventing aircraft bird strikes,
the Court saw no rational justification for
the provisions that: (1) limited the ban to
cases where exactly two landfills had been
proposed; (2) restricted the provision to
airports with fewer than 50,000 annual
emplanements; (3) covered only
commercial, and not commuter, airports;
and (4) limited the statute to purely
retrospective effect. Cross-appeals were
taken to this Court.
While these appeals were pending
before us, Congress enacted the Wendell
Ford Act, which replaced Section 1220 of
FARA with a new and somewhat broader
provision. Section 503(b) of the Wendell
Ford Act, 49 U.S.C. § 44718(d) provides
in pertinent part:
(1) In general.–No person
shall construct or establish a
municipal solid waste
landfill . . . that receives
putrescible waste . . . within
6 miles of a public airport
that has received grants
under chapter 471 and is
primarily served by general
a v i a t io n a i r c ra f t a nd
regularly scheduled flights
of aircraft designed for 60
passengers or less unless the
State aviation agency of the
State in which the airport is
located requests that the
Administrator of the Federal
Aviation Ad ministration
exempt the landfill from the
a p p l i c a t i o n o f t h i s
s u b s e c t i o n a n d t h e
Administrator determines
that such exemption would
have no adverse impact on
aviation safety.
( 2 ) L i m i t a t i o n o n
applicability.–Paragraph (1)
. . . shall not apply to the
construction, establishment,

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expansion, or modification
of, or to any other activity
undertaken with respect to,
a municipal solid waste
landfill if the construction or
establishment of the landfill
was commenced on or
before the date of the
e n a c t m e n t o f t h i s
subsection.
49 U.S.C. § 44718(d)(1)-(2).
In August 2000, the FAA
promulgated FAA Advisory Circular
150/5200-34 to provide “guidance on
complying” with the Act. For our
purposes, the Circular’s most important
portions are its definitions of the terms
“construction” and “establishment.” The
Circular states:
a. Construct a municipal
solid waste landfill means
excavate or grade land, or
raise structures, to prepare a
municipal solid waste
landfill as permitted by the
appropriate regulatory or
permitting authority.
b. Establish a municipal
s o l i d w a s t e l a n d f i l l
(MSWLF) means receive
the first load or putrescible
waste on site for placement
in a prepared municipal
solid waste landfill.
FAA Advisory Circular 150/5200-34,
Appendix 1 (a)-(b) (emphasis in original).

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Because of the legal change
effected by the Act, we vacated the portion
of the District Court’s opinion that had
held that Section 1220 of FARA was
unconstitutional, and we remanded to
allow Eagle to file an amended complaint
addressing the new Act. Khodara I, 237
F.3d at 195, 198.
On remand, Eagle filed an amended
complaint seeking a declaratory judgment
to the effect that Section 503(b) of the
Wendell Ford Act does not apply to Happy
Landing Landfill because, prior to the
enactment of that Act, which became law
on April 5, 2000, Eagle had commenced
construction and establishment of the
landfill within the meaning of Section
503(b)’s grandfather clause. See 49
U.S.C. § 44718(d)(2). In the alternative,
Eagle sought a declaration that it was
entitled to an exemption under 49 U.S.C. §
44718(d)(1) because the operation of
Happy Landing Landfill would not have an
adverse impact on aviation safety. Eagle
also sought declarations that the Act was
unconstitutional in various respects.
Eagle, the FAA, and the other defendants
all moved for summary judgment. All of
the defendants argued that the Act
prohibited the development of Happy
Landing Landfill, and the FAA also argued
that Eagle’s Wendell Ford Act claims were
barred for lack of standing and ripeness.
The District Court granted summary
judgment for the defendants. On Eagle’s
claim that it fell within the grandfather
clause in 49 U.S.C. § 44718(d)(2), the
Court rejected the FAA’s standing and
ripeness arguments but concluded that
Eagle had not commenced the construction
or establishment of the landfill prior to the
enactment of the Wendell Ford Act. On
Eagle’s claim that it was exempt because
the landfill would not adversely affect
aviation safety, the Court held that the
claim was not ripe and therefore dismissed
it without prejudice. The Court also
granted summary judgment against Eagle
on its constitutional claims. Eagle then
filed this appeal and argues that its actions
at Happy Landing Landfill bring it within
the grandfather clause.1
II.
We begin by considering the FAA’s
argument that Eagle lacks Article III
standing. See Joint Stock Soc’y v. UDV
N. Am., Inc., 266 F.3d 164, 175 (3d Cir.
2001) (“Constitutional standing is a
threshold issue that we should address
before examining issues of prudential
standing and statutory interpretation.”);
Peachlum v. City of York, 333 F.3d 429,
433 (3d Cir. 2003).
“Article III of the Constitution
limits the federal judicial power to ‘Cases’
or ‘Controversies,’ thereby entailing as an
‘irreducible minimum’ that there be (1) an
injury in fact, (2) a causal relationship
1 Eagle does not seek review
regarding its claim for an exemption
under 49 U.S.C. § 44718(d)(1) or its
constitutional claims.

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between the injury and the challenged
conduct, and (3) a likelihood that the
injury will be redressed by a favorable
decision.” United Food and Commercial
Workers Union Local 751 v. Brown
Group, Inc., 517 U.S. 544, 551(1996). See
also, e.g., Bennett v. Spear, 520 U.S. 154,
162 (1997); Northeastern Fla. Chapter
Associated Gen. Contractors of Am. v.
Jacksonville, 508 U.S. 656 (1993). These
“requirements ensure that plaintiffs have a
‘personal stake’ or ‘interest’ in the
outcome of the proceedings, ‘sufficient to
warrant . . . [their] invocation of federal-
court jurisdiction and to justify exercise of
the court’s remedial powers on . . .[their]
behalf.’” Joint Stock Soc’y, 266 F.3d at
175 (quoting Wheeler v. Travelers Ins.
Co., 22 F.3d 534, 537-38 (3d Cir. 1994)).
A plaintiff seeking a declaratory
judgment must possess constitutional
standing but need not have suffered “the
full harm expected.” The St. Thomas–St.
John Hotel & Tourism Ass’n v. Virgin
Islands, 218 F.3d 232, 240 (3d Cir. 2000).
In such a case, we have said, a plaintiff has
Article III standing if “there is a
substantial controversy, between parties
having adverse legal interests, of sufficient
immediacy and reality to warrant the
issuance of a declaratory judgment.” Id.
In the present case, these
requirements are met. There certainly is “a
substantial controversy” between Eagle
and the defendants, and each side has
interests that are adverse to the other.
Eagle wishes to develop the Happy
Landing Landfill and claims that this is
permitted by the Wendell Ford Act,
whereas the defendants take the position
that the Act precludes development of the
landfill. In addition, the dispute is of
“sufficient immediacy and reality to
warrant the issuance of a declaratory
judgment.” Although the FAA has not yet
taken action against Eagle, the FAA’s
position regarding the application of the
Act to the Happy Landing Landfill site is
clear. And while the DEP’s revocation or
suspension of Eagle’s permits presents an
independent obstacle to the development
of the facility, it is apparent that it would
be inordinately expensive and impractical
from a business standpoint for Eagle to
attempt to cure that problem until the
Wendell Ford Act issue is resolved. If it is
settled that the Wendell Ford Act does not
apply, Eagle asserts (and no party
disagrees) that Pennsylvania law would
permit Eagle to try to satisfy the
Pennsylvania DEP by redesigning the
Happy Landing Landfill facility, and Eagle
intends to pursue this course if it is
successful in this case. It is also
noteworthy that no party has suggested
that there is any way in which Eagle could
have attacked both of the obstacles that it
faces in a single proceeding. Under these
particular circumstances, we believe that
the standing requirements for a declaratory
judgment case are met.
In arguing that Eagle’s claim does
not meet Article III requirements, the FAA
focuses on the second and third prongs of
the generally applicable test for
constitutional standing, i.e., causation and
redressability. The FAA begins by

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identifying Eagle’s injury as “the
prohibition of its proposed landfill” and
concedes that this injury “likely would
satisfy the injury-fact-requirement,” but
the FAA maintains that “[t]he Wendell
Ford Act’s prohibition is not the direct
cause of Eagle’s inability to construct and
operate the landfill.” FAA’s Br. at 13-14.
“Rather,” the FAA writes, “the DEP’s
decision to revoke a portion of Eagle’s
water obstruction and encroachment
permit and suspend its remaining permits
prevents Eagle from constructing the
landfill and does so regardless of whether
the Wendell Ford Act applies.” Id. at 14.
Similarly, the FAA maintains that “it is
purely speculative whether Eagle’s injury
would be redressed by the declaration that
it seeks” because even if the declaration
were granted, the lack of state permits
would block the development of the
landfill. Id.
There are two ways in which this
argument can be answered. First, under
the circumstances present here, where
Eagle faces two, independent regulatory
obstacles that can only be attacked in
separate proceedings, it makes sense to
conceptualize Eagle’s injury, not as “the
prohibition of its proposed landfill” in the
general sense, but as the prohibition of its
landfill by the challenged application of
the Wendell Ford Act. Cf. Northeastern
Fla. Chapter Associated Gen. Contractors
of Am. v. Jacksonville, 508 U.S. at 664-66
(injury in fact under the circumstances is
not the ultimate denial of contract but the
inability to compete on equal terms).
When Eagle’s injury is understood in this
way, both the causation and redressability
prongs are plainly satisfied.
Second, even if Eagle’s injury is
defined more narrowly as its inability to
operate the landfill, the FAA’s argument
hinges on the proposition that the
“causation” prong of the test for
constitutional standing demands that the
challenged conduct be a but-for cause of
the plaintiff’s injury. This proposition,
however, is doubtful. Article III standing
demands “a causal relationship,” but
neither the Supreme Court nor our Court
has ever held that but-for causation is
always needed. Moreover, it is well
recognized that but-for causation is
problematic in precisely the situation
present here, i.e., where an effect is
“causally over-determined,” i.e., where
there are multiple sufficient causes. Price
Waterhouse v. Hopkins, 490 U.S. 228, 241
(1989) (opinion of Brennan, J.). See W.
Page Keeton et al., Prosser and Keeton on
the Law of Torts § 41 at 266-67 (5th ed.
1984); Richard W. Wright, Causation in
Tort Law, 73 CAL. L. REV. 1735, 1775-76
(1985). A classic example in tort law is
the hypothetical case in which a person is
simultaneously hit with two lethal gun
shots fired at the same time by two
hunters. But-for causation leads to the
absurd conclusion that neither shot was the
cause of the victim’s demise, and
accordingly “[i]f two causes concur to
bring about an event and either one of
them, operating alone would have been
sufficient to cause the identical result,
some other test [i.e., other than but-for
causation] is needed.” Prosser and Keeton

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on the Law of Torts, supra, § 41 at 266.
The FAA’s argument in this case
resembles the argument that neither of the
hunters in the hypothetical mentioned
above was the cause of the victim’s death.
The FAA’s argument leads logically to the
conclusion that any litigation commenced
by Eagle to remove either of the two
obstacles that prevent it from developing
the Happy Landing Landfill site – the
application of the Wendell Ford Act and
the lack of permits – would fail Article III
standards. Suppose, for example, that
Eagle redesigned its facility but was
unsuccessful in obtaining the needed state
permits and then sought judicial review in
the Pennsylvania courts. If those courts
adhered to the same standing requirements
that the FAA argues apply in federal court,
the very same argument that the FAA now
advances could be made with respect to
Eagle’s state-court litigation. It could be
argued that “[the denial of the state
permits] is not the direct cause of Eagle’s
inability to construct and operate the
landfill. Rather, the [application of the
Wendell Ford Act] prevents Eagle from
constructing the landfill and does so
regardless of whether the [the permits are
granted].” FAA’s Br. at 14. Likewise, it
could be argued that “it is purely
speculative whether Eagle’s injury would
be redressed by the [a state-court decision
that it is entitled to the permits]” because
even if such a decision were issued, the
Wendell Ford Act would block the
development of the landfill. Id. In short,
under the logic of the FAA’s argument,
any attempt by Eagle to attack either one
of the obstacles that it faces would run
afoul of the case-or-controversy
requirement.
In our view, however, Article III
does not dictate such an absurd result.
Under the particular circumstances here,
where Eagle faces two, independent
obstacles that are potentially removable
but that cannot be challenged in a single
litigation, we believe that Article III allows
Eagle to challenge each obstacle
separately.
The FAA contends, however, that
Article III demands that Eagle address its
state-law problems before litigating the
federal-law issues presented in this case,
but the FAA provides no convincing
explanation for its view. The FAA does
not argue that the supremacy of federal
over state law demands that state-law
obstacles be removed first, and we see no
basis for such an argument. Nor does the
FAA contend that it is more efficient in
this case for the state issues to be tackled
first – and, if anything, the opposite seems
to be the case. Rather, the FAA’s only
explanation for its position that Eagle must
resolve the state issues first is that “the
permitting process is logically prior to the
construction and operation of a landfill.”
FAA’s Br. at 16. The meaning of this
statement is not clear, but if the FAA is
arguing that the question whether Eagle is
entitled to permits under state law “is
logically prior” to the question whether the
We ndell Ford Act prohib its the
development of the Happy Landing
Landfill facility, we do not follow the

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FAA’s logic. It does not seem to us that
logic assigns priority to either the federal
or state issues.
In sum, under the particular factual
circumstances of this case, Eagle has
Article III standing.
III.
The FAA also argues that Eagle’s
claim is unripe because Eagle “has not
shown that it will be able to obtain state
permits to construct the proposed landfill,”
“has never sought a formal determination
from the FAA that [the Wendell Ford] Act
prohibits its landfill,” and has not
requested the state aviation agency to
petition the FAA under 49 U.S.C. §
44718(d)(1) for an exemption for the
Happy Landing Landfill facility. FAA’s
Br. at 16, 19.
The ripeness doctrine serves to
“determine whether a party has brought an
action prematurely and counsels abstention
until such time as a dispute is sufficiently
concrete to satisfy the constitutional and
prudential requirements of the doctrine.”
Peachlum v. City of York, 333 F.3d 429,
433 (3d Cir. 2003) (citing Philadelphia
Federation of Teachers, Am. Fed’n of
Teachers, Local 3, AFL-CIO v. Ridge, 150
F.3d 319, 323 (3d Cir. 1998) and Abbott
Labs. v. Gardner, 387 U.S. 136, 148-49
(1967), overruled on other grounds,
Califano v. Sanders, 430 U.S. 99, 105
(1977)). Various considerations “underpin
the ripeness doctrine,” including whether
the parties are in a “sufficiently adversarial
posture to be able to present their positions
vigorously,” whether the facts of the case
are “sufficiently developed to provide the
court with enough information on which to
decide the matter conclusively,” and
whether a party is “genuinely aggrieved so
as to avoid expenditure of judicial
resources on matters which have caused
harm to no one.” Peachlum, 333 F.3d at
433-34. In determining whether a case is
ripe, we generally examine: “(1) ‘the
fitness of the issues for judicial decision,’
and (2) ‘the hardship to the parties of
withholding court consideration.’” Id. at
434 (citing Abbott Labs., 387 U.S. at 149);
see also Nextel Communications of the
Mid-Atlantic, Inc. v. City of M argate, 305
F.3d 188, 193 (3d Cir. 2002).
In declaratory judgment cases, we
apply a somewhat “refined” test “because
declaratory judgments are typically sought
before a completed injury has occurred.”
Pic-A-State Pa. Inc. v. Reno, 76 F.3d
1294, 1298 (3d Cir. 1996). Thus, when
“determining whether to engage in pre-
enforcement review of a statute in a
declaratory judgment action,” we look to
“(1) the adversity of the parties’ interests,
(2) the conclusiveness of the judgment,
and (3) the utility of the judgment.” Pic-
A-State Pa. Inc. v. Reno, 76 F.3d 1294,
1298 (3d Cir. 1996) (citations omitted);
see also Step-Saver Data Systems, Inc. v.
Wyse Technology, 912 F.2d 643, 646-47
(3d Cir. 1990).
In considering whether Eagle’s
Wendell Ford Act claim is ripe, two
decisions of other courts of appeals are
instructive. In Gary D. Peake Excavating,

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Inc. v. Town Board of the Town of
Hancock, 93 F.3d 68 (2d Cir. 1996), a
town enacted a local law prohibiting the
operation of dumps. Id. at 70-71. This
local law was enacted after the New York
State Department of Environmental
Conservation (the “DEC”) promulgated
new regulations that required a permit for
construction and demolition (“C & D”)
debris landfills. Id. at 70. Peake, who
owned land in the town and wanted to
operate a C & D debris landfill, and his
company sued the town, claiming that the
local law was unconstitutional. Id. at 71.
The town argued that the plaintiffs’ claim
was not ripe because they were not using
the property for a debris landfill and
because they could not use the property for
such a facility without first obtaining a
state permit. Id. at 72. The Second Circuit
disagreed. Id. Observing that “[t]he issues
presented by the Plaintiffs’ claims are fit
for judicial review because they are purely
legal and may be decided without further
factual development,” the Court continued:
Moreover, the Plaintiffs
would suffer substantial
hardship if judicial review
were withheld. Peake
a l r e a d y h a s s p e n t
“considerable sums” of
money in an effort to obtain
a permit from the DEC to
operate a C&D landfill. He
claims that he is “reluctant
to spend more money to
o b t a i n the ad ditio n a l
information required by [the
DEC] because, even if a
permit were granted, Local
Law No. 1 would still
p r e v e n t [ h i m ] f r o m
operating [his] disposal
facility.” Reviewing the
ordinance at this time will
allow Peake to make an
informed decision as to
whether he should expend
additional money to obtain a
DEC permit to operate a
C&D landfill. If we uphold
the ordinance, Peake will be
able to cut his losses by
halting his efforts to obtain
a DEC permit; if we
invalidate the ordinance,
Peake can continue with the
DEC permitting process,
knowing that obtaining the
DEC permit would not be in
vain. In contrast, if judicial
review were withheld until
Peake obtained a DEC
permit, Peake would have to
c h o o s e b e t w e e n ( 1 )
abandoning his plans to
construct the C&D landfill
in deference to a potentially
unconstitutional ordinance
a n d ( 2 ) e x p e n d i n g
"considerable sums" of
money to obtain a DEC
p ermit and there afte r
commencing an action
challenging the ordinance.
We see no reason why
Peake should have to
expend substantial sums of
money before challenging

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the constitutionality of the
ordinance. Nor should
Peake be required to subject
himself to the threat of the
criminal penalties imposed
by Law No. 1 in order to
challenge the ordinance.
Id.
The case of Triple G Landfills, Inc.
v. Board of Commissioners of Fountain
County, 977 F.3d 287 (7th Cir. 1992), is
also closely on point. There, Triple G
wanted to build a landfill in Fountain
County, Indiana, but county residents
objected, and eventually the county
adopted an ordinance that obligated a party
wishing to construct a landfill to obtain a
county permit in addition to the state-
issued permit that was already required.
Id. at 288. The stringent requirements of
the new county ordinance effectively
barred Triple G from constructing its
landfill, and Triple G brought suit,
challenging the constitutionality of the
ordinance.
Before reaching the merits of the
case, the Seventh Circuit held that Triple
G’s claims were ripe even though Triple G
had not yet applied for either a state or a
county permit. Triple G Landfills, Inc.,
977 F.3d at 288-90. The Court began by
stating that “[i]nquiries into ripeness
generally address two factors: first,
whether the relevant issues are sufficiently
focused so as to permit judicial resolution
without further factual development; and,
second, whether the parties would suffer
any hardship by the postponement of
judicial action.” Id. at 289. The Court
concluded that the first factor weighed
heavily in favor of a finding of ripeness
because the issues presented were “purely
legal.” Id. The Court then detailed why
delay would “work a substantial hardship
to Triple G.” Id. “Postponing judicial
action,” the Court wrote, “would force an
unwarranted dilemma upon Triple G.” Id.
at 290. It would be required either to
“scuttle its development plans altogether in
deference to a potentially invalid county
regulation, or complete the expensive and
time-consuming state permit process,
submit a permit application that Fountain
County is certain to reject, and then, after
incurring substantial sunk costs, bring a
facial challenge to the ordinance.” Id.
The Court concluded that this dilemma
was unwarranted because delay would
result in no “countervailing benefit–either
to the judicial process or the public
interest.” Id. Even though there was a
chance that the state would “turn down
Triple G’s permit application,” the Court
held, this was not “sufficient to defeat
ripeness.” Id.
We are persuaded by the analysis of
the Second and Seventh Circuits in these
cases, and for similar reasons, we hold that
Eagle’s claim is ripe. Looking to the
factors enumerated in Pic-a-State Pa. Inc.,
76 F.3d at 1298, we note, first, that “the
adversity of the parties’ interests” is
evident and is not disputed by the FAA.
Second, it is apparent that a judgment in
this case will conclusively establish
whether Happy Landing Landfill falls

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13
within the Wendell Ford Act’s grandfather
clause. Third, a judgment on the merits
will have significant practical value for
Eagle. Eagle will then be in a position to
know whether it should undertake the
expensive project of redesigning the site
plan and trying once again to obtain state
permits.
In addition to these factors, we note
that here, as in Gary D. Peake Excavating,
Inc. and Triple G, delay will not lead to
further development of relevant facts. The
facts that are pertinent to the question of
the application of the grandfather clause –
regarding what Eagle did on the Happy
Landing Landfill site prior to the critical
date – are simple and undisputed. The crux
of the issue on the merits – i.e., what the
grandfather clause mea ns by the
“commence[ment]” of “the construction
or establishment” of a landfill (49 U.S.C.
§ 44718(d)(2)) – is purely legal. We will
not be in any better position to answer this
question in the future than we are now.
Nor do we see any other advantage in
delay. Although the FAA argues that
Eagle should be required to ask the FAA
for a formal determination regarding the
application of the grandfather clause, the
FAA’s position on that issue is perfectly
clear. And as for the FAA’s argument that
Eagle should be required to ask the state
aviation agency to petition the FAA for an
exemption under 49 U.S.C. § 44718(d)(1),
the futility of such a request is evident.
We consequently hold that Eagle’s claim is
ripe.
IV.
We now consider the merits of
Eagle’s claim that the Happy Landing
Landfill facility falls within the Wendell
Ford Act’s grandfather clause. The
grandfather clause applies, Eagle argues,
because it commenced the “construction”
and “establishment” of the landfill facility
before the enactment of the Wendell Ford
Act.
A.
The parties’ first point of
disagreement is whether the Wendell Ford
Act’s grandfather clause is ambiguous.
According to Eagle, the clause is clear and,
as a result, the District Court erred in
looking beyond the statutory language and
in relying on the FAA Advisory Circular.
When interpreting a statute, we
begin with the statutory language itself,
and “[i]t is well established that ‘when the
statute’s language is plain, the sole
function of the courts – at least where the
disposition required by the text is not
absurd – is to enforce it according to its
terms.” Lamie v. U.S. Trustee, 124 S.Ct.
1023, 1030 (2004) (citations omitted).
Here, we agree with the District
Court that the grandfather clause is
ambiguous. As noted, the clause states
that Section 503(b) of the W endell Ford
Act, 49 U.S.C. § 44718(d)(1), does not
apply to the “construction, establishment,
expansion, or modification of, or to any
other activity undertaken with respect to, a
municipal solid waste landfill, if the

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14
construction or establishment of the
landfill was commenced on or before the
date of enactment” of the Act. 49 U.S.C.
§ 44718(d)(2) (emphasis added). Since the
word “commenced” modifies both
“construction” and “establishment,” we
must ascertain what Congress meant by
c o m m e n c i n g c o n s t r u c t i o n a n d
commencing establishment.
Eagle’s argument that this language
is clear has surface appeal because the
r e l e v an t t e r m s – “ c o mmenc e d ,”
“construction,” and “establishment” – are
common and, in many contexts, their
meaning is entirely plain. As used in the
grandfather clause, however, the meaning
of these terms is ambiguous.
In ordinary speech, “to commence”
means “to enter upon,” to “begin,” to
“start,” or “to initiate formally by
performing the first act of.” Webster’s
Third New International Dictionary 456
(1971). “Establishment” may mean,
among other things, “the act of bringing
into existence, creating, founding,
originating or setting up so that a certain
continuance is assured” or “w ith
permanence in view.” Id. at 778. And
“construction” means “the act of putting
parts together to form a complete
integrated object” or “fabrication.” Id. at
489.
Unfortunately, these definitions are
not sufficiently precise to pin down at
exactly what point in the process of
bringing a landfill into existence the
grandfather clause takes effect. As the
District Court noted and as the record
bears out, that process is often complex
and lengthy, requiring the acquisition of
land, the satisfaction of legal requirements,
many different stages of work on the site,
the solicitation of business, and the
beginning of actual operations. One could
plausibly contend that the commencement
of the establishment of a landfill takes
place very early in this process. Along
these lines, it could be argued that a party
“start[s]” “the act of bringing [a landfill]
into existence” “with permanence in view”
when it takes the very first step of the
process that it intends to bring about that
result. Thus, if a party buys land for use as
a landfill, that could be viewed as the
commencement of the establishment of the
landfill. At the other extreme, however,
one could plausibly argue that the
commencement of the establishment of a
landfill does not occur until the point at
which “a certain continuance is assured,”
and this might not be viewed as occurring
until after the last legal obstacle is
surmounted or, perhaps, until commercial
operation actually begins. Because the
statutory language referring to the
“commence[ment” of the “establishment”
of a landfill can comfortably accommodate
these widely divergent interpretations, it is
not unambiguous.
Although “construction” is a more
concrete concept than “establishment,” the
s t a t u t o r y r e f e r e n c e t o t h e
“commence[ment]” of the “construction”
of a landfill is also unclear. On the one
hand, doing any physical work on the site
could be viewed as a step in the “the act of

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15
putting parts together to form a complete
integrated object,” i.e., the landfill. On the
other hand, “construction” might be
narrowly construed to mean the erection of
a structure of some sort on the site.
For these reasons, we agree with the
District Court that the statutory language is
ambiguous.
B.
Because the statutory language is
ambiguous, we must consider whether to
defer to the interpretation in FAA
Advisory Circular 150/5200-34, which
d e f i n e s “ c o n s t r u c t i o n ” a n d
“establishment.” The District Court gave
the Circular the measure of deference
prescribed by Skidmore v. Swift & Co.,
323 U.S. 134 (1944), but the FAA argues
that the Circular actually merits the
stronger form of deference called for by
Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837
(1984). The FAA makes this argument
even though “interpretations contained in
policy statements, agency manuals, and
enforcement guidelines” generally do not
fall within Chevron. Christensen v. Harris
County, 529 U.S. 576, 587 (2000); see also
Alaska Dep’t of Envtl. Conservation v.
EPA, 124 S.Ct. 983, 1001 (2004) (agency
interpretation in “internal guidance
memoranda” not entitled to Chevron
deference). We find it unnecessary to
decide this question, because even if we
accept the Circular’s definitions of the key
statutory terms, the Happy Landing
Landfill facility falls within the
grandfather clause. Thus, we will assume
for the sake of argument that the
definitions in the Circular accurately
capture the statutory meaning.
C.
Eagle argues that it commenced the
“construction” of the Happy Landing
Landfill before the Wendell Ford Act
became law on April 5, 2000. The FAA
Circular, as previously noted, defines
“construction” as follows:
a. Construct a municipal
solid waste landfill means
excavate or grade land, or
raise structures, to prepare a
municipal solid waste
landfill as permitted by the
appropriate regulatory or
permitting authority.
In arguing that its activities at
Happy Landing Landfill prior to April 5,
2000, fall within this definition, Eagle
notes in particular that it completed the
installation of 12 groundwater monitoring
wells in June 1996 at a cost of nearly
$35,000 and that the process of installing
such wells generally requires digging and
the placement underground of inner and
outer well casings, gravel, screens, sealing
material, and pumps or bailers. Eagle also
points out that the state permit that
mandated the installation of these wells
described this process as “major
construction activity.” Appellant’s Br. at
17, 19. Eagle contends that the installation
of the w ells involved both the

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16
“excavat[ion]” of land and the “rais[ing]”
of “structure[s].” Id. at 15-22.
We will analyze this argument in
two parts. First, we will consider whether
Eagle’s installation of the groundwater
m o n i t o r i n g w e l l s c o n s t i t u t e d
“construction” under the definition in the
FAA circular. Second, we will address the
question whether the revocation of Eagle’s
permit prior to April 5, 2000, affects the
applicability of the grandfather clause.
Turning to the first of these
questions, we conclude that the installation
of the wells comes easily within the
Circular’s definition. In order to install the
wells, Eagle “excavate[d],” i.e., dug out,
land. See Webster’s Third New
International Dictionary 791 (1971)
(defining “excavate” as “to hollow out:
form a cavity or hole in,” “to dig out and
remove (as earth or mineral matter)”). In
addition, Eagle also installed an access
road and a silt perimeter fence, and these
activities also involved excavation.
Moreover, all of these activities were
done, in the words of the Circular, “to
prepare a municipal solid waste landfill.”
It also seems likely that the
installation of the wells amounted to the
“rais[ing]” of “structures.” That the wells
qualify as “structures” seems obvious, see
Webster’s Third New International
Dictionary 2267 (1971) (defining a
“structure” as “something constructed or
built”), and while it is somewhat awkward
to speak of the “raising” of an
underground structure, such usage falls
within the broad definition of the term
“raise.” See id. at 1877 (defining “raise”
to mean, among other things, “construct”).
This interpretation is plausible in the
present context since most construction at
a landfill site is underground, and there are
other situations (for example, building a
subway) in which it is natural to speak of
underground construction. We note that
the FAA has not argued that the reference
in its Circular to the “rais[ing]” of
structures is limited to above-ground
construction. In any event, because
Eagle’s activities involved “excavation”
and because this is sufficient to invoke the
grandfather clause, we need not decide
whether Eagle also “raise[d]” structures.
The FAA argues that Eagle’s
installation of the groundwater monitoring
wells was not “construction” but
“preconstruction” activity “undertaken to
determine the viability of the site, in
anticipation of the construction of the
landfill, but not as part of its construction.”
FAA’s Br. at 26. As noted, however, the
Circular refers to excavation done “to
prepare” a landfill. Installation of wells
for the purpose of establishing to the
satisfaction of state regulators that a site is
suitable falls within the scope of
“prepar[ation].”
The FAA notes that our prior
opinion in this case characterized the
installation of the wells as “pre-
construction,” see Khodara Envtl., Inc.,
237 F.3d at 188 (“After obtaining these
permits, Eagle began pre-construction by
conducting engineering surveys and

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17
installing monitoring wells.”), but this
language is of little significance for
present purposes. We used the term “pre-
construction” in passing and without
reference to the grandfather clause. At
issue here is not the meaning of
“construction” in ordinary parlance but the
definition that the FAA placed in its
Circular. Our casual reference to “pre-
construction” is no more controlling on
that issue than the description of the
installation of the wells in Eagle’s permit
as “major construction activity.”2
Jefferson County and Pine Creek
Township make the interesting argument
that the Happy Landing Landfill facility
cannot fall within the grandfather clause
because Congress adopted the statutory
provision at issue for the very purpose of
blocking Happy Landing Landfill. It is a
sufficient response to this argument to
observe that – as all the defendants have
strenuously advocated – we are applying
the definition of “construction” that was
adopted by the FAA in its Circular. If
Jefferson County and Pine Creek
Township feel that the FAA’s definition
does not comport with Congress’s
objective, they should not have urged us to
defer to that definition. Jefferson County
and Pine Creek Township contend that the
operation of the Happy Landing Landfill
will pose a threat to aircraft using the local
airport, but we must presume that the
interpretation of the grandfather clause
adopted by the FAA, the agency with
expertise in the field, takes aviation safety
fully into account.
We therefore turn to the second
question noted above, i.e., whether the
revocation of Eagle’s permit prior to April
5, 2000, affects the applicability of the
grandfather clause. The District Court
answered this question in the affirmative
and wrote:
We think that implicit in the
A d v i s o r y C i r c u l a r ’ s
definition of “construct[ion]
of a municipal solid waste
landfill” is a temporality
requirement: i.e., the landfill
must have been under
construction and permitted
b y t h e a p p r o p r i a t e
regulatory or permitting
authority” as of April 5,
2000. This requirement
Eagle did not meet, as its
Solid Waste Permit was still
under suspension in April of
2000.
2At oral argument, counsel for the
FAA agreed that the statement in
Khodara I does not bind us in any way.
The FAA contends, however, that the
Wendell Ford Act’s grandfather clause
was intended to distinguish between true
“construction,” which is freighted with
developer and community expectations,
and “preconstruction” activity, which is
not. We acknowledge that this
distinction may make sense as a matter of
policy, but neither the Act itself nor the
FAA’s interpretation in the circular gives
effect to such a policy.

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18
App. 51a-52a (emphasis in original).
In a similar vein, the FAA argues
that because “no construction was
‘permitted by the appropriate regulatory or
permitting authority’ as of the effective
date of the statute,” Eagle does not fall
within the exception as interpreted by the
FAA. FAA’s Br. at 26 (emphasis added).
This argument overlooks the fact that the
grandfather clause speaks o f the
“commence[ment]” of construction “on or
before” the date of the enactment of the
Wendell Ford Act, 49 U.S.C. § 4717(d)
(emphasis added), not “as of” that date.
Accordingly, “construction,” as defined in
t h e F A A C i r c u l ar , m u s t h a v e
“commence[d]” “on or before” April 5,
2000. This means that “on or before” that
date, Eagle must have begun to “excavate
. . . land . . . to prepare a municipal solid
waste landfill as permitted by the
appropriate regulatory or permitting
authority.” In other words, the excavation
must have been “permitted by the
appropriate regulatory or permitting
authority” on the date of commencement,
and this date must have been “on or before
April 5, 2000.” This reading includes “a
temporality requirement,” but not the one
identified by the District Court.3
In sum, we hold that Eagle
commenced construction of the Happy
Landing Landfill within the meaning of
the FAA Circular prior to the effective
date of the Wendell Ford Act.
VI.
3 The District Court stated that
without its “temporality requirement,”
the grandfather clause could produce the
following “absurd result”: “a landfill –
once permitted remotely in time – would
reap the benefit of § 503(d)(2)’s [§
503(b)’s] exception indefinitely.” App.
46. In light of the narrow scope of
Section 503(b), however, it may well be
that this situation will never arise. It
should be kept in mind that, prior to the
adoption of FARA and § 503(b), the
FAA generally prohibited the location of
a landfill within five miles of an airport.
See Khodara I, 237 F.3d at 189 n.3.
Thus, in order to fall within the District
Court’s hypothetical all of the following
conditions would have to be met: (1) the
landfill site would have to be located
between five and six miles from an
airport; (2) the airport would have to
have received a federal grant of the type
specified in Section 503(b); (3) the
airport would have to be one that is
“primarily served by general aviation
aircraft and regularly scheduled flights of
aircraft designed for 60 passengers or
less; (4) the construction or
establishment of the landfill would have
to have commence pursuant to state
authorization prior to April 5, 2000; and
(5) completion of the landfill, for some
reason, would have to be delayed
“indefinitely.” App. 52a. The class of
landfills satisfying all of these conditions
is almost certainly very small and may
well be nonexistent.

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For the reasons set out above, we
reverse the order of the District Court
granting summary judgment for the
defendants and remand for the entry of
summary judgment in favor of the plaintiff
and for the issuance of a declaratory
judgment that the Happy Landfill falls
within the grandfather clause of the
Wendell Ford Act.

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