By Raymond Bender
July gave us another court case rebuking FAA secrecy and arbitrary decisions. In Flyers Rights Education Fund, Inc. v. FAA, the D.C. United States Courts of Appeals told the FAA to again review whether skinnier, narrower, claustrophobic aircraft seats created passenger safety hazards.
Flyers Rights argued that shoehorning passengers into cramped seats risked passenger health before and after crashes. Restricted blood flow caused by cramped seats, they said, might lead to deep leg thrombosis — a condition caused when blood settles in the circulatory system, as often occurs in the lower limbs during long flights and especially among the elderly. After a crash, restricted seats might slow escape from the aircraft as sardined and confused crash victims fight to escape darkened and possibly smoky aircraft aisles.
The court agreed that the FAA had presented enough information to reject the thrombosis claim but concluded that the FAA had failed to present evidence that smaller seats did not compromise passenger safety.
Understandably, the Flyers Right case grabs headlines because millions of flyers have enjoyed the difference between today’s and yesterday’s airline seats. But more important than the court’s conclusion is the court’s analysis, which confirms that the FAA routinely rejects the public’s concerns without evidence.
The FAA Failed a Very Low Judicial Review Bar
The Flyers Rights case began when its president asked the FAA to regulate aircraft seat size. Without citing any specific studies, the FAA denied the request, simply saying that emergency egress tests have been successfully conducted.
The court began its review by noting the law largely tied its hands to change a FAA discretionary safety decision. The court said:
“Because Flyers Rights challenges the [FAA’s] decision not to engage in rulemaking – the [FAA’s] inaction – our review is extremely limited.” … [W]e will overturn the [FAA’s] decision ‘only for compelling cause, such as plain error of law or a fundamental change in the factual premises previously considered by the [FAA].’” [Decision, Part II]
Yet, the court held:
“We agree with Flyers Rights that the [FAA] failed to provide a plausible evidentiary basis for concluding that decrease seat sizes combined with increased passenger sizes have no effect on emergency egress.” [Decision, Part III]
To defend its “nonaction” in Flyers Rights, the FAA referred to aircraft emergency exit studies that did not refer to seat dimensions. The court replied:
“The [FAA] 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 [FAA’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.” [Decision, Part III]
After then noting that the FAA studies were in any event outdated because the studies were conducted when aircraft seats were larger, the court said:
“The problem here is that the [FAA] has given no reasoned explanation for withholding the tests in their entirety, and it has declined to file them under seal or in redacted form. [Due to confidentiality concerns.] Yet the [FAA] explicitly relied on those missing studies in reaching its decision to deny [Flyers Rights’] petition for rulemaking. And the [FAA] asks the court to trust those studies …. But that is not how judicial review works. We cannot affirm the sufficiency of what we cannot see.” [Decision, Part III]
Closer to Home: City of Vista Noise Concerns
Unfortunately, the FAA position and argument in the Flyers Rights case is not an isolated position. Complaints to the FAA follow a common pattern:
(1) the public sends the FAA a letter with stated concerns and evidentiary backup;
(2) the FAA replies stating it can find no support for the complaint or someone other than the FAA is at fault; and
(3) the FAA in effect says, “Trust us” because FAA studies show no problems exist.
In December 2015 on behalf of her constituents, Vista Mayor Judy Ritter wrote the FAA Lawndale office to say:
“Unfortunately for our residents, beginning approximately 2-3 years ago, the frequency of aircraft has increased. When combined with what appears to be lower altitudes of the aircraft, the noise level impacts for our community have drastically increased.” [Dec. 10, 2015, letter]
The FAA February 2016 reply letter said
(1) “Local operators are primarily responsible for the planning and implementation of actions designed to reduce the effect of airport noise … , (2) CRQ (McClellan-Palomar Airport) is owned and operated by the County of San Diego, (3) there is a Palomar Airport Advisory Committee (PAAC) and the City of Vista has a representative on the committee, and (4) we recommend … Vista … work with the committee.”
Yet, scarcely taking a breath, the letter then says the FAA is implementing its “Southern California Metroplex Project” and has released its “Noise Integrated Routing System” model for comment. You may have seen newspaper articles and television programs about the FAA Metroplex Project, otherwise known as “NextGen,” the FAA’s nationwide plan to use satellites to reroute aircraft more efficiently to airports.
Now follow the FAA’s February 2016 bouncing ball? Vista: Don’t talk to us. Talk to the county and the county’s PAAC. They control airport noise. Oh, by the way. As a result of our Metroplex project, we are changing flight paths across the United States and you can read and comment on our study if you wish. So who controls the noise? The county or the FAA?
Now, the plot thickens. The PAAC invited the FAA to discuss its Metroplex project at the June 2017 PAAC meeting. Many Vista residents attended expecting to hear how the Metroplex project would affect their community. Instead, the FAA representative gave a general overview of how satellite guidance helps aircraft to get to Palomar sooner. But no specific answers to Mayor Ritter’s questions: Why have flights and noise increased over Vista in the last two to three years and how will Metroplex change it.
The Final Irony
If you have dealt with the FAA, you can see the irony in the position the FAA took in the Flyers Rights case and in its response to Vista.
The FAA in its NEPA policy (Order 5050.4B) refers to comments of the public and of officials 93 times.
Similarly, in its 2016 FAA AC 150/5050-4A “Community Involvement in Airport Planning” Policies, the FAA goes to great length to explain how local agencies should interact with the community.
If you request records from the FAA under the Freedom of Information Act (FOIA) (5 U.S.C. § 552), the FAA insists that records requested be specifically described as to location and subject matter. If you request an FOIA fee reduction as a member of the media, an educational institution, or a scientific institution or because the information requested will significantly benefit the public interest, expect an intimate physical exam.
Yet when you ask the FAA to support its decisions – as the Flyers Rights court found – the FAA often relies on hidden, outdated studies that do not even discuss the central point of concern. Or, as Vista found out, the FAA points the finger of blame elsewhere, then contradicts itself as to who controls noise, then refuses to provide the specific information when given the chance to do so.
Ray Bender is a San Marcos resident; retired City Attorney; J.D. UCLA; MBA UCLA Anderson School of Business.