You may have read reports that the FAA lost two significant legal cases in the last few months, one involving model aircraft drone registration and the other a petition for rulemaking on airline seat sizes. These losses and what the Court had to say left me wondering what—if anything—the decisions reveal about FAA decision-making.
Agencies lose cases, of course. But it’s relatively rare because the legal standard for overturning agency decisions is high. When I was at the NTSB, challenges to our decisions benefitted from that high standard for review. The FAA is no exception to the high rate of success on appeal—it wins (or settles) the overwhelming majority of its cases—both those it prosecutes and those it defends. That’s why these two recent decisions by the United States Court of Appeals for the District of Columbia (the federal appeals court that hears most federal agency challenges) seemed so significant to me. It’s not just because the FAA lost, but because the Court of Appeals in both cases used particularly scathing language in its decisions.
The first case, decided in May this year, involved the FAA’s decision to issue an emergency rule in December 2015 requiring hobbyists flying model aircraft to register their models and set up a timetable to do so: new owners before their first flight and those who already owned their drones by February. The FAA was particularly concerned about pilot reports of drones flying near airports or near aircraft. While many if not most of those reports could not be verified, the FAA remained highly concerned about the possibility of an incident or accident caused by a drone. For reasons I find inexplicable, the agencydecided that registration would help prevent the likelihood of an accident by “educating” drone owners via the registration process and holding them accountable if an incident or accident occurred, presumably by tracking them down by the registration number. While, of course, I don’t believe drones should be flown in a way that interferes with or endangers manned aircraft, I also didn’t believe that the few minutes it took to register constituted education nor did I think tiny registration numbers (which could legally be put inside the aircraft’s battery compartment) would lead to identification of the operator except in the rare case where a drone crashed, was found and the identification numbers survived.
Many legal experts viewed the rule as illegal for a number of reasons, among them the decision to issue it as an emergency rule without the typical notice and comment period required by law. Part of the FAA’s justification was the number of drones expected to be given as gifts at Christmas that year. Surely, as many commenters pointed out at the time, the arrival of Christmas in December could not have been a surprise justifying emergency action.
Rule Violates Statutory Prohibition
But what did surprise many of us was the FAA’s decision to ignore a specific Congressional requirement pertaining to the FAA and rulemaking related to model aircraft. And that is what the Court of Appeals focused on in its decision. The Court concluded: “In 2012, Congress passed and President Obama signed the FAA Modernization and Reform Act. Section 336(a) of that Act states that the FAA ‘may not promulgate any rule or regulation regarding a model aircraft.’ The FAA’s 2015 Registration Rule, which applies to model aircraft, directly violates that clear statutory prohibition.”
Here again in its decision, the Court emphasized just how clearly the FAA had violated the law: “Notwithstanding that clear statutory restriction on FAA regulation of model aircraft, in December 2015 the FAA issued a final rule requiring owners of all small unmanned aircraft, including model aircraft, to register with the FAA.” And once more, “In short, the 2012 FAA Modernization and Reform Act provides that the FAA 'may not promulgate any rule or regulation regarding a model aircraft,' yet the FAA’s 2015 Registration Rule is a 'rule or regulation regarding a model aircraft.' Statutory interpretation does not get much simpler. The Registration Rule is unlawful as applied to model aircraft.”
On an issue near and dear to my heart—emergency evacuations in the event of an airline disaster—a consumer advocacy group, Flyers Rights Education Fund, petitioned the FAA for rulemaking governing size limitations for aircraft seats to ensure, among other things, that passengers can safely and quickly evacuate in an emergency. The group argued that as seats have gotten smaller and closer together, and passengers heavier, there could be an impact on emergency evacuations. In its petition, Flyers Rights provided evidence that airline seat and spacing dimensions have steadily decreased over the last several decades. The petition noted that economy-class “seat pitch”—the distance between a point on one seat and the same point on the seat directly in front of it—has decreased from an average of 35 inches to 31 inches, and in some airplanes has fallen as low as 28 inches. Evidence in the petition further indicated that average seat width has narrowed from 18.5 inches in the early 2000s to 17 inches in the early to mid-2010s. The petition also noted that, since the 1960s, the average American flier has grown steadily larger in both height and girth. he FAA denied the petition without citing any studies and without challenging the group's assertions.
Flyers Rights petitioned the Court of Appeals for a review of the FAA’s decision. The Court, as in the Taylor case, was emphatically unimpressed with the FAA’s arguments. “The Administration denied the petition, asserting that seat spacing did not affect the safety or speed of passenger evacuations. To support that conclusion, the Administration pointed to (at best) off-point studies and undisclosed tests using unknown parameters. That type of vaporous record will not do; the Administrative Procedure Act requires reasoned decisionmaking grounded in actual evidence.” Concluding that the FAA’s record was “vaporous” and not based on “reasoned decisionmaking grounded in actual evidence” is pretty harsh language to use against an agency that is supposed to be safety and data-driven.
Although the Court stated that its review of the FAA’s decision is limited by law, it nonetheless agreed with Flyers Rights “that the Administration failed to provide a plausible evidentiary basis for concluding that decreased seat sizes combined with increased passenger sizes have no effect on emergency egress.” In the course of its decision, the Court used the following language: “The Administration argues that the omission of information about seat dimensions from the tests means that seat dimensions are categorically unimportant to emergency egress. That makes no sense.” The Court continued: “The Administration’s rationale also blinks reality. As a matter of basic physics, at some point seat and passenger dimensions would become so squeezed as to impede the ability of passengers to extricate themselves from their seats and get over to an aisle. The question is not whether seat dimensions matter, but when.” The Court ultimately did not order the FAA to enact specific rules but sent the matter back to the agency to properly consider the petition and if it rejects it, to do so on the basis of proper evidence.
So what does this highly critical language from a reviewing court say about the FAA and its decision-making? Is this another example of FAA arrogance at work? Incompetence? Or something else? Whatever it is, I hope the FAA takes a long hard look at these decisions and makes some much needed course corrections.