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                Icarus’s Redemption Revisited?


Tuesday, March 19, 2024
      
            FAA Chief Counsel, Marc Nichols
      
            Three lawyers enter a room. That’s not a joke setup – it’s just what happens every time I meet with the FAA Administrator and Deputy Administrator. Mike Whitaker, Katie Thomson, and I have law degrees. This is the first time since William MacCracken and Clarence Young were at the Aeronautics Branch of the Department of Commerce, the predecessor to the FAA, that attorneys held the top three roles on the FAA succession tree.

Now, I know the universal reaction to a roomful of lawyers isn’t: “Well, this will be a delight!,” a notion reinforced by the most famous line from Shakespeare’s Henry VI. After all, Dick the Butcher doesn’t say: “The first thing we do is. . . BRING more lawyers!” The actual line is much less hospitable.

That’s why when I get an invitation to speak, I try to defy the low expectations some have of the legal profession. So today, I’m going to lean into the lawyerliness. In addition to some key FAA updates, I will bring you up to speed on the alarming way the foundation of federal administrative law is changing for our industry and why this should concern us.

Last year, I spoke at the SMU Aviation Symposium in Dallas. I recounted the story of a father who built an experimental craft for his son. The father warns the son before the inaugural flight not to buzz an adjacent ocean or exceed the craft’s maximum altitude. The son, full of Top Gun hubris but without the Maverick skill, does both and plummets tragically.

This story, of course, isn’t the misadventure of a new passenger drone or eVTOL; rather, it chronicles the first aviation accident in history: the Greek tragedy of Icarus.

Wings – made of feathers, cloth, and beeswax – clog from the salt water and then melt when Icarus flies too close to the sun, leading to his demise and countless lessons, foremost being the value of civil aviation authorities! If there’s an FAA in ancient Greece, in no universe does Icarus’s father, Daedalus, get a type certificate for a fixed-wing aircraft cobbled together with beeswax!

But the deeper lesson is not about the manufacturing flaws of the aircraft – a story, as we’ve recently been reminded, is as true today as in olden days of yore – it’s about the son ignoring the father’s safety regulations.

Knowing modern commentators use Icarus as a cautionary tale on placing unfaltering confidence in new technology, I opined that, with careful planning, we could redeem Icarus. We could bring technology to its best effect. Having started my third year a couple months ago, I maintain that sentiment.

If you conceptualize the FAA’s foundation as a four-legged stool, we have the strongest base in some time. The first leg has been constant - a dedicated workforce – always sturdy, and for air traffic controllers, growing through aggressive hiring targets, recruitment efforts, and creative approaches fostered by many in this room to work with Collegiate Training Initiative schools to speed the path of each trainee to a tower.

The second leg is our Administrator, who received a unanimous confirmation, which seems unprecedented, given our country’s recent political climate. His performance validates that confidence. His handling of the Boeing Max 737 door plug incident has been fact-driven, decisive, incisive, methodical, and hands-on – with a personal visit to Boeing’s manufacturing facility in Renton, WA. His demand to Boeing to offer a plan in 90 days showing real and profound improvement came following a six-week audit and a congressionally mandated expert review of its safety culture and organization delegation authorization (ODA) program.

Administrator Whitaker also advances technology to improve safety. Just last week, we launched Approach Runway Verification, which improves air traffic controller situational awareness through visual and audio alerts if an aircraft is lined up to land on the wrong airport surface, or even the wrong airport. We introduced it at Austin-Bergstrom International, and we’ll add airports through 2025.

Knowing Administrator Whitaker is on board for five years sets lanes of safety and gives long-term voice to our global aviation community that the FAA will brook no safety shortcuts, as it looks to regain steadier footing as the “gold standard” of civil aviation authorities. As I’ve said before, tarnished gold is still gold. We strive to polish our hard-earned metal again.

In fact, the Administrator is working with our senior leadership to amplify our international influence, which will be pivotal to harmonizing our modernization plans, advancing emerging technologies, and developing collaborative solutions for global aerospace challenges.

We’ll be reinforcing partnerships with regional groups, such as EASA, ASEAN, AFCAC, and long-standing bilateral partners, as well as building alliances with new partners with aligning interests.

And we’ll be doing this with a “boots on the ground” approach. This year, five new senior representatives will rotate into Miami, Brussels, Warsaw, Singapore, and our new office in Sydney, Australia.

This builds on the Mexico City office we established last year, a year in which our international team handled hefty work, including supporting Ukraine by developing virtual training courses for air traffic controllers and technicians, funding technical assistance to Africa, and monitoring global risk to help safeguard U.S. operators and citizens traveling abroad through the establishment of NOTAMs and SFARs.

In fact, our international representatives are in town right now to advance this work as part of our 10th Annual Global Leadership Conference.

The third leg of the stool is our financing. On March 9, President Biden signed the spending bill that covers the FAA for the 2024 Fiscal Year. This is excellent news. While I assure you the FAA is acting aggressively on every safety challenge when living under continuing resolutions, we go through a lot less Alka-Seltzer when Congress provides the means to execute our mission and methods.

One of President Biden’s best-known quotes he inherited from his father: “Don’t tell me your values. Show me your budget, and I’ll tell you what you value.” On that score, it’s easy to see the bi-partisan belief that the FAA is moving in the right direction. The Fiscal Year 24 budget of just over $20 billion, adds $1.25 billion over ’23, and, among many other initiatives, lets us:

fully fund the 1,800 air traffic controllers we are bringing on;
	fund 125 new positions in the Office of Aviation Safety to increase oversight of Boeing and fully implement the Aircraft Certification, Safety, and Accountability Act;
	use $3 billion to update FAA facilities and equipment, specifically for NextGen programs, such as Terminal Flight Data Manager and DataComm, which improves the efficiency of our air traffic control and reduce flight delays;
	improve airport ground surveillance, which reduces the likelihood of runway incursions; and
	strengthen our NOTAM systems.Moreover, FY 24 provides $3.9 billion for Airport Improvement Program (AIP) grants to reduce emissions at airports, build infrastructure necessary to support unleaded and sustainable aviation fuels, improve airport resiliency by protecting against worsening natural disasters due to climate change, and, again, help develop our aviation workforce.

Then last week...the work began anew. President Biden released our FY 25 budget proposal, which adds another $1.8 billion over FY 24. There’s a lot to digest, but of note, $8 billion over five years for a new facility replacement and radar modernization proposal and funding for 2,000 air traffic controllers, as well a few funding pools for commercial space and UAS integration and safety research.

The fourth leg of our FAA stool? Reauthorization, of course. Congress recently extended our authorities until May 10, and while this is admittedly scuttlebutt, pre-conference conversations are reportedly constructive. We’re hopeful we’ll get a five-year reauthorization so we can move to legitimate long-term planning with confidence. If so, we’ll sit more firmly than in a while. Icarus redeemed, right?

BUT...and isn’t there always one of those with the lawyers?  Let me address a challenge that could soon wobble the ground on which the FAA stool sits, as well as our industry. This one comes from U.S. Supreme Court, which is poised to dramatically alter the authority of federal agencies.

**CHEVRON & MAJOR QUESTIONS**

Bear with me as I get simultaneously lawyerly and a little Schoolhouse Rock on you to explain some legal concepts that advance your understanding of my final points.

Our Constitutional separation of powers envisions three, co-equal branches, of course – the judiciary, legislative, and executive. But as complexity entered our world, it became impossible for Congress to micromanage what it wanted to achieve for our citizenry, so it had to delegate its finishing authority, if you will (like adding finishing salt at the end of cooking a meal), to the executive branch through federal agencies.

Congress sometimes is very precise in what agencies can do, but more frequently, especially with marquee legislation, it uses broad – or as appellate lawyers call it – “capacious language,” which gives agencies a lot of flexibility to enact regulations to get the job done.

But some contend federal agencies have become too powerful and now operate as a “fourth branch.” In his book *Law & Leviathan: Redeeming the Administrative State*, Professor Cass Sunstein summarizes critics who say, and I quote, “we have an administrative apparatus wielding executive powers of frightening scope and power that threaten to undo the original constitutional structure and produce unaccountable and undemocratic policy making.” Well, who would want to be part of that?!?

Those seeking to reign in federal agencies note that the Founders never envisioned such expansive executive power. Well, sure. But I’m pretty sure the Founders also never envisioned safely crossing the nation in hours with 200 other people, propelling through the sky at 500 miles per hour in a 100-ton tube.

But where the rubber hits the runway on this debate is how – and more importantly who – decides what Congress’s words mean when they’re not altogether clear. We all know judges interpret the law, but the notion is not as simple as it seems.

In 1984, in *Chevron v. Natural Resource Defense Council*, the United States Supreme Court confronted what the word “source” meant under the 1963 Clean Air Act. Well, it wasn’t clear. At all. But the Court needed to decide, so it weighed a philosophical question: was it better to have nine Justices with lifetime appointments whose decisions were unreviewable take a stab that could be akin to policymaking; OR should it defer to the interpretation of the federal agency charged with administering the law?

Taking into account the sentiments of noted attorneys Stuart Gerson and Robert Wanerman that “agencies possess a level of technical and scientific expertise that the federal courts generally lack,” and knowing, as well, that at least cabinet heads are appointed by a democratically elected president, AND that Congress could always overturn an agency action it disapproved, the Court said we’ll defer to the agency, not just on this case, but on ALL cases. Chevron deference was born!

Since then, 19,000 cases have referenced *Chevron*. But over the past few years, the Supreme Court has chiseled it away and recently heard two cases that will decide whether the doctrine goes into the dustbin of history.

To be a fair broker, let me reinvoke messieurs Gerson and Wanerman who questioned whether this deference abnegated the judicial prerogative of interpreting the law. The Chevron critics beckon to the courts, ‘You’ve got ONE job! You can’t just give up when words aren’t clear!” or if there is a so-called tie, why not use the interpretation that favors the individuals who find their lives, liberty, or property affected by federal agency action?

*Chevon* opponents also argued the doctrine’s very existence makes it LESS likely that Congress deals with the big issues. What’s the motivation for a legislator to seek a bi-partisan compromise that might draw a primary opponent if the legislator can just call an agency and ask it to exercise its authority in the broadest way possible, at least if the legislator is of the same party as the administration?

Opponents have also noted how presidential campaigns of recent vintage promise to repeal what the last administration did or reinstate what it undid. The critics ask essentially, “Wouldn’t things be more predictable and fairer to the public if an unchanged regulation has the same meaning on January 20th AND January 21st?”

We’ll see soon enough who carries the day. But even if Chevron survives, there’s yet another rising check on federal agency actions – the “major questions” doctrine. If you’re like me, the phrase “major questions” can connote unpleasant conversations, like with your spouse after you make unilateral decorating decisions, or decide whose family you’ll visit during the holidays, or why you went to see that “horrible” movie.

The short version of this doctrine is that even if a statute’s broad language clearly gives authority to an agency like the FAA to take an action, courts can say it’s not what Congress REALLY meant to do if it presents a “major question.”

So, what makes a question major? We don’t know .... though the greater the financial and political implications, the more likely it is to be called one. The Supreme Court did say the major questions doctrine is reserved for “the extraordinary case.” However, what makes a case “extraordinary?” We don’t know. A Congressional Research Service evaluation noted: “We can find no limiting principle.”

I’m reminded of the three retired baseball umpires who were debating their skill. The first says, “I called ‘em as I saw ‘em.” The second says, “I called them as they were.” The third says, “They weren’t nothing ‘til I called ‘em.” So goes our Supreme Court.

Where is aviation and commercial space in this legal constellation? The FAA, admittedly, doesn’t have a lot of challenges to its interpretations right now, but it does have them, and deference to the agency plays a role. Last year, the 11th Circuit Court of Appeals upheld the agency’s interpretation of the word "carrying" in the phrase "carrying persons or property for flight training." Similarly, the agency’s definition of "employee" for drug and alcohol testing purposes survived a challenge in the 9th Circuit. Even the definitions of “aircraft” and “flight” were challenged in a case involving two pilots who tried unsuccessfully to skydive into each other’s planes; seriously...I suspect they may be related to Icarus.

But even if we are well-situated in the moment, think forward. Is there ever a time when agency flexibility is more pivotal than when there is the greatest chasm between what the regulatory regime has built and the speed of the technological innovation of the industries it regulates? This is also the time when science, data, and expertise is most indispensable. Public safety and our ability to thrive in global markets may very well hinge on it.

One regrettable consequence of wholescale changes to agency deference could be Congress feeling compelled to be a lot more specific. This could lead to bad outcomes codified in law, which are generally more complicated to undo than agency action...unless Congress opts to write laws without regard for long-standing regulatory schemes that make our government largely work now.

Perhaps like other recent Court decisions, those who for so long sought a particular type of ruling on a particular type of issue may find themselves like the dog who finally caught up with the long-chased-after car. Here’s to hoping we all don’t get run over by said car if they catch it.

I want to thank Bob and the IAC board for the invitation today to share my thoughts. Rest assured, whatever legal foundation emerges, the FAA will stay firmly floored and future-focused, embracing the Daedalus-like audacity for innovation while ensuring our current Icaruses . . .or is it Icari? always land safely.

Thank you. U.S. Department of Transportation

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