A Superior Court judge said he’s likely to rule next week on the city of Charlotte’s lawsuit to block a new commission from taking control of the Charlotte Douglas International Airport, after hearing arguments from both sides Friday.
But no matter whether Judge Robert Ervin rules in favor of City Council or the regional airport commission, the losing side will likely appeal. And all sides agreed Friday that the Federal Aviation Administration still needs to weigh in and decide whether the commission needs its own operating certificate for the airport.
Ervin set the tone for the long-running dispute early in Friday’s hearing, when the city and the state lawyers representing the commission were deciding who should speak first.
“Why don’t y’all flip a coin and see who wins?” Ervin asked.
The dispute has stretched on for almost two years, since the idea of forming a regional authority to run Charlotte Douglas first surfaced in early 2013.
The state legislature created the 13-member commission in July 2013, over the city’s loud objections. While Republican legislators leading the charge said the commission would protect Charlotte Douglas from political meddling by local politicians, the City Council called the move a power grab.
The city promptly sued, and Ervin issued a temporary injunction blocking the commission from running the airport.
At stake is control of an airport with almost 44 million annual passengers. Charlotte Douglas is the second-busiest hub for the world’s largest carrier, American Airlines. The airport has about $1 billion worth of construction planned or underway.
In the hourlong hearing Friday at the Mecklenburg County Courthouse, N.C. Deputy Attorney General Marc Bernstein argued that the commission law is constitutional and the city’s lawsuit should be dismissed. He said the city is nitpicking points in a last-ditch attempt to block the commission.
“They’re just throwing stuff at the wall to see what sticks,” said Bernstein. “This is a process issue, and it really doesn’t hold any water.”
Attorneys for the city, on the other hand, said the law should be thrown out as unconstitutional because it pre-empts the FAA’s authority to decide who runs airports.
“It’s backwards,” said attorney Jim Phillips, arguing for Charlotte. “A person doesn’t get to operate the country’s eighth-largest airport until the FAA says they can.”
Phillips warned of “unimaginable” uncertainty and confusion if the judge lifts his injunction and the commission attempts to start running the airport. “The General Assembly had three chances to get this right,” he said. “They didn’t.”
Ervin’s questioning of the attorneys offered a window into his thinking. He asked if they thought he could rule that the law is constitutional, but the part that declares it “effective immediately” is not. That would leave the commission intact, but still require it to seek the FAA’s approval to run the airport.
Last year, Ervin said that he wanted the FAA to decide who should run the airport, as the federal agency charged with overseeing airport operating certificates. Since then, the legal dispute has bounced between state court, the FAA and the N.C. General Assembly, pingponging around in a fruitless search for a permanent solution.
The FAA has said it won’t rule while the legal dispute is ongoing, and won’t consider the question of who should run the airport until Charlotte asks it to, something the city has shown no inclination to do.
Talks between Charlotte city government and Gov. Pat McCrory didn’t produce a compromise this year. The legislature passed a follow-up bill this summer revising the commission law, to clarify that the commission would be an agency of the city, but the commission remained blocked from actually taking control of Charlotte Douglas.
After the hearing, commission supporter state Sen. Bob Rucho, a Mecklenburg County Republican, said he was encouraged. “I’m delighted the judge recognized the decision needs to be made sooner rather than later,” said Rucho. But he wouldn’t predict which way the fight will ultimately go. “I’m not a bookmaker,” said Rucho.