A federal appeals court issued an important ruling overturning the ability of Westchester County to limit flights, and it has nationwide implications for small airports especially in wealthy areas that try to block air travel.

Westchester tried to enforce a 2005 ordinance requiring all passenger flights — including JSX and XO charters — to use the airport’s main commercial terminal instead of private terminals. The Second Circuit struck it down as an illegal access restriction under the Airport Noise and Capacity Act.

At Westchester, the main terminal is subject to strict caps. The airport has a limit of 240 daily passenger operations, allocated through a lottery system. Forcing JSX, XO, and similar charters into that terminal would have automatically subjected them to those caps, blocking them from scheduling flights.

A number of small airports have tried to block scheduled service, for a combination of NIMBY anti-noise and anti-airport reasons and a desire to keep away the sort of riff raff who buy first class flights but don’t own their own jets. And this ruling – while not controlling nationwide – is highly suggestive of what the law actually says is permitted.

Teterboro And Van Nuys Airports Can’t Block Scheduled Services

Teterboro airport in New Jersey – 12 miles northwest of Midtown Manhattan is the preferred private airport for the New York City area – does not allow scheduled service ‘held out for sale to the public’ but JSX now flies from Teterboro – they just don’t market ‘scheduled service from Teterboro’ and limit sale of the flights to members of their loyalty program. When JSX launched their loyalty program I found it unimpressive, not realizing at the time the strategic play in opening up access to Teterboro.

The airport is not ‘part 139-certified’ which effectively limits the flights that can operate there. But the Port Authority of New York New Jersey goes well beyond this. No distinction is made here between the type of flying that’s done (such as FAA regs parts 121, 135, or 380). If you publish a bookable timetable, that meets the airport’s definition of “scheduled” and they say you’re blocked.

Scheduled operations are excluded from Teterboro Airport.

‘Scheduled operation’ means any common passenger‑carrying operation for compensation or hire … held out to the public … at set times announced by a timetable or schedule published in a newspaper, magazine, internet website or other advertising medium.

Yet JSX isn’t the only carrier flying out of Teterboro. At least two services predate JSX,

• Tradewind offers both private charter and scheduled flights via “ticket book” membership to places like Nantucket and Martha’s Vineyard. On their “Scheduled Flights” page, they list schedlde seat options and Teterboro with a bulk purchase of credits requirement akin to JSX limiting sales to club members.

  Departure from Teterboro for our scheduled service is reserved exclusively for our ticket book holders.

• XO has offered by the seat flights between New York and both West Palm Beach and Fort Lauderdale at around $1,500 per passenger.

Meanwhile, Van Nuys airport doesn’t allow scheduled commercial flights, but Aero does it anyway and Los Angeles World Airports believes they do not have the legal authority to stop it. LAWA is likely correct.

Credit: Aero

In recent years, operations at Van Nuys have shifted away from single engine piston aircraft to private jets. So while some critics frame the Aero services as ‘the wealthy’ flaunting rules for their own convenience, in reality it’s ‘the wealthy’ attempting to keep the public airport for themselves to the exclusion of the merely well-off.

Credit: Van Nuys Airport

Relatedly, Naples, Florida has even looked at moving its airport since they cannot block commercial service at the current one. A new airport would allow commercial service – but would be farther away from wealthy residents and less convenient for visitors.

Why Airports Can’t Simply Ban ‘By The Seat Charter Flights’

Runways at airports accepting federal grants are basically highways, and must accept all comers. Most famously, Centennial Airport in the Denver area adopted a total ban on scheduled passenger service. Centennial Express tried to run scheduled Part 135 flights anyway.

• The Arapahoe County Public Airport Authority got a state-court injunction. The Colorado Supreme Court backed them in 1998 and said the ban wasn’t preempted or in conflict with FAA grant assurances.

• The FAA, though, found the ban violated federal grant assurances (unjust discrimination/exclusive rights) and conflicted with the Airline Deregulation Act because the airport authority hadn’t proved safety or capacity issues justified the rule.

• The Tenth Circuit Court of Appeals affirmed the FAA in 2001, holding that the ban was preempted and unreasonable under the “proprietor exception” because the airport authority failed to show evidence the ban was necessary for safety or civil aviation needs. The panel noted a “dearth of evidence” supporting the ban and that allowing unscheduled operations in the same aircraft undermined the safety rationale – therefore the ban exceeded the proprietor’s authority.

Under U.S. law, airports that receive federal grants are bound by grant assurances including nondiscriminatory access and “no unjust discrimination.”

There’s an exception under 49 U.S.C. § 41713(b)(3) allowing an airport proprietor to regulate “as proprietor” if the restriction is necessary for safe operation or serves civil aviation needs. Whether that applies depends on evidence.

What Westchester County Airport Tried To Do

The Westchester County Executive had been hostile to any airport use. The County denied FBO operator Million Air the ability to construct a new terminal to which it was contractually entitled for reasons deemed not to be “reasonable as a matter of law.”

In 2022, Westchester sued Blade, JSX, and XO for selling flights with more than 9 seats while using private terminals at the airport.

The Westchester Airport’s Terminal Use Agreement requires commercial airlines to operate from that terminal. Flights out of the terminal are subject to limits, the right to operate based on a lottery system, and passenger limits.

The airport adopted a new policy in January 2022 that required these carriers to operate out of the main terminal, with TSA screening rather than handling their own screening according to TSA-approved procedures. (That would also make them subject to the lottery system, limiting their operations.)

United States District Judge Philip M. Halpern, who was nominated to serve in the Southern District of New York by President Trump at the suggestion of then-Fox News commentator Jeanine Pirro (she’s the ex-wife of Judge Halpern’s law firm partner – who was convicted of tax fraud), issued a ruling saying that the airport could enforce its terminal use rules, suggesting this fell under its latitude to set safety and operational limits. (Ironically, I’m aware of at least one Trump family member that’s been a JSX customer out of Westchester.)

The Second Circuit Overruled Westchester County

The federal appeals court panel ruled that the terminal‐only requirement for air carriers is an “access restriction” or limit on operations, and that the airport’s 2005 rules were pre-empted by the Airport Noise and Capacity Act of 1990. That’s because the rules were not either,

• Approved by the DOT Secretary,
  
• Agreed to by all carriers, or
  
• Grandfathered (in place prior to 1990)

The Court found that Westchester’s terminal-only rule was not ‘grandfathered’ because it reduced or limited aircraft operations in a way that triggers the law’s requirement for agreement of all operators or approval by Secretary of Transportation. Neither of those conditions applied.

That said, the court found that the County’s rule is not preempted by the Airline Deregulation Act, and that the plaintiff’s Equal Protection challenge failed because the rule is rationally related to legitimate local interests. So they didn’t win on all counts, but did not need to.

What Is ‘ANCA’ And How Does It Apply?

The Airport Noise and Capacity Act of 1990 created a uniform national process for restricting aircraft operations at U.S. airports based on noise or capacity concerns (e.g. noise-based curfews, operational caps).

• To adopt or enforce a new noise or access restriction, an airport has to go through a DOT process is any operator at the airport objects.

• However, restrictions already “in effect on or before October 1, 1990” are grandfathered and continue without going through that process. Virtually no new restriction has ever survived the FAA review prcess.

Here are the grandfathered restrictions:

• Orange County (SNA) – Curfew and slot/cap system (limits commercial operations)
  
• San Diego (SAN) – Curfew on departures 11:30 pm–6:30 am.
  
• Boston (BOS) – night noise rules, including preferential runway use
  
• Teterboro (TEB) – Night noise limits and weight restrictions
  
• Burbank, Aspen, Naples some restrictions and caps predate ANCA

Almost every airport that has tried to get FAA approval for a new restriction has been denied. Burbank tried to impose a mandatory nighttime curfew, but this was rejected in 2009. East Hampton tried to impose slot limits and curfews after letting grant assurances expire but courts held ANCA still applied.

There are other edge cases, like Aspen’s aircraft size and weight rules when adjudicated under safety-based proprietor rules rather than noise rules, and Naples, Florida when it got restrictions on small, noisier ‘stage 2’ jets that are largely out of use back in 2005. Meanwhile, some airports write noise-sensitive practices into lease covenants, but those are still vulnerable if they look like de facto access restrictions.

Because ANCA preemption is affirmed in the Westchester case, the airport cannot enforce the terminal‐only requirement (as codified in its 2005 Amendment).

And the logic of ANCA preemption likewise mean other local airport rules like Westchester’s that impose “terminal only” or “scheduled operations exclusion” or similar access restrictions without DOT approval likely fail.