Burbank-Glendale-Pasadena Airport Authority v. City of Burbank

concurring.

I join Judge Schroeder’s opinion but write briefly to address appellant’s suggestion that we reconsider South Lake Tahoe, at least insofar as it denies state instrumentalities standing to raise constitutional claims based on the- Supremacy Clause. While we are bound by the law of the circuit, the fact that three other circuits seem to have recognized an exception to the per se rule of South Lake Tahoe, see maj. op. at 1363-64, might be a reason to reconsider the matter en banc. See, e.g., United States v. Jose, 131 F.3d 1325 (9th Cir.1997) (en banc).

Unfortunately, the cases from the other circuits do not merit emulation. Supremacy Clause claims do differ from other constitutional claims in this respect: Most constitutional claims pit the individual against the power of the government, while Supremacy Clause claims protect the interests of the federal government against encroachment by the states. Appellants argue that even if *1365 state instrumentalities do not have personal rights, like those protected by the Bill of Rights, they are surely able to promote federal interests by litigating federal preemption claims against the state.

I am not so sure. A federal…

Opinion by Judge SCHROEDER; Concurrence by Judge KOZINSKI.

The Burbank-Glendale-Pasadena Airport Authority (“Authority”) is engaged in a substantial expansion of terminal and parking facilities for the Burbank Airport. The City of Burbank (“Burbank”) is reviewing the acquisition of land for that expansion, pursuant to California Public Utilities Code § 21661.6. The Authority filed this action to block Burbank’s review, claiming that Burbank’s implementation of the state statute in this case is contrary to federal law, and hence uncon *1362 stitutional under the Supremacy Clause, as well as other clauses of the United States Constitution.

The problem for the Authority is that it is a political subdivision of the State of California. The district court dismissed the action on the ground that it is barred under our court’s decision in South Lake Tahoe v. California Tahoe Regional Planning Agency, 625 F.2d 231 (9th Cir.1980), which held that a political subdivision of a state lacks standing under federal law to challenge the constitutionality of a state statute. The Authority appeals, contending the Supreme Court has overruled South Lake Tahoe or, in the alternative, that we should…