Action on Smoking and Health v. C.A.B.
| Decision Date | 28 January 1983 |
| Docket Number | Nos. 79-1044,79-1754 and 81-2023,79-1095,s. 79-1044 |
| Citation | 699 F.2d 1209 |
| Parties | ACTION ON SMOKING AND HEALTH, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent. ACTION ON SMOKING AND HEALTH, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent. ACTION ON SMOKING AND HEALTH, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent. ACTION ON SMOKING AND HEALTH, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent Air Transport Association of America, Transamerica Airlines, Inc., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
John F. Banzhaf, III, Washington, D.C., with whom Paul N. Pfeiffer and Athena Mueller, Washington, D.C., were on the brief, for petitioner in 79-1044, 79-1095, 79-1754 and 81-2023. Peter N. Georgiades, Pittsburgh, Pa., also entered an appearance for petitioner, in 79-1044 and 79-1095.
Kathleen O. Argiropoulos, Washington, D.C., for intervenor, Air Transport Association of America in 81-2083.
Walter D. Hansen, Washington, D.C., for intervenor, Transamerica Airlines, Inc., in 81-2023. Jeffrey A. Manley, Washington, D.C., also entered an appearance for intervenor, Transamerica Airlines, Inc.
Mark Frisbie, Attorney, C.A.B., Washington, D.C., with whom Ivars V. Mellups, Deputy Gen. Counsel, Thomas L. Ray, Acting Associate Gen. Counsel, C.A.B., Barry Grossman and Mark Del Bianco, Attorneys, Dept. of Justice were on the brief, for respondent. Glen M. Bendixsen, Barbara Thorson, Gary J. Edles and Michael Schopf, Attorneys, C.A.B., Margaret G. Halpern, John J. Powers, III, and Robert B. Nicholson, Attorneys, Dept. of Justice, Washington, D.C., also entered appearances for respondents.
Before WRIGHT and MIKVA, Circuit Judges and BAZELON, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge BAZELON.
Petitioner, Action on Smoking and Health (ASH), challenges the promulgation of Regulation ER-1245 by the Civil Aeronautics Board (Board). That regulation relaxes prior protections afforded nonsmokers against breathing the tobacco smoke of fellow passengers aboard aircraft. The Air Transport Association of America and Transamerica Airlines, Inc. have intervened to argue that the Board is altogether lacking in authority to regulate smoking. We find that the Board does have such authority, but the Board's failure to address adequately certain relevant matters requires us to vacate its action in part and remand it in part.
The Civil Aeronautics Board has regulated smoking on airlines since 1973. 1 It asserts authority to do so under section 404(a) of the Federal Aviation Act of 1958 (the Act), 2 which requires carriers to "provide safe and adequate service" and "to establish, observe, and enforce just and reasonable classifications, rules, regulations and practices." The Board has primary responsibility for enforcing these requirements. 3 Smoking regulations promulgated by the Board are set forth in 14 C.F.R. Part 252 (1982).
In 1976, ASH petitioned the Board to strengthen its smoking regulations. The Board responded with a notice of proposed rulemaking, ERD-306, 4 which drew thousands of letters from private individuals and comments from various industries, public interest groups, and government agencies. In January 1979, the Board adopted ER-1091, increasing protections for nonsmoking passengers. 5 Five months later, the Board adopted ER-1124, which for the first time applied the smoking regulations to commuter airlines with a passenger capacity of more than 30. 6
ASH sought review of ER-1091 and ER-1124 in this court, 7 arguing that the new regulations still did not provide sufficient protections. We stayed action in that challenge on the Board's assurance that it was proceeding "with dispatch" in its consideration of more stringent smoking regulations proposed in another rulemaking, EDR-377. 8 The Board issued two more proposals, EDR 399 and 420, before taking final action on EDR-377. EDR-399 proposed the so-called "five-minute rule," which would permit airlines to deny seats in the no-smoking section to passengers not present for boarding at least five minutes before scheduled flight departure. 9 EDR-420 further expanded the scope of the rulemaking to include the polar alternatives of banning smoking altogether or revoking the regulations entirely. 10 The Board received voluminous comments from ASH and other groups on each of the proposals.
On June 25, 1981, the Board met in open session under the "Sunshine Act." 11 At the meeting, the Board had only two proposals before it. The first, by the Office of Economic Analysis, recommended that the Board rescind all rules relating to smoking aboard aircraft. The second, by the Bureau of Consumer Protection, recommended keeping the no-smoking section requirement, but only guaranteeing seats in that section to passengers meeting whatever check-in requirement the airline imposed. The second proposal also eliminated protections related to pipe and cigar smoke, drifting tobacco smoke, and adequate ventilation. The Board adopted the second proposal in ER-1245 12 on September 2, 1981.
ASH attacks promulgation of ER-1245, arguing that (1) the Board's statement of the basis and purpose for rescinding several existing protections for non-smokers was inadequate, and (2) the Board did not sufficiently articulate the basis of its failure to adopt several of the proposed protections for non-smokers. 13 An additional challenge, presented by the intervenors, presents the threshold question whether the Board has authority to regulate smoking at all.
"Where the empowering provision of a statute states simply that the agency may 'make ... such rules and regulations as may be necessary to carry out the provisions of this Act' ... the validity of a regulation promulgated thereunder will be sustained so long as it is 'reasonably related to the purposes of the enabling legislation.' " 14 Because the Board has broad rulemaking authority under the Act, 15 its regulations are valid so long as they reasonably advance the purposes of the Federal Aviation Act. For authority to regulate smoking, the Board relies on its responsibility to insure that carriers both "provide safe and adequate service" 16 and observe "just and reasonable ... practices." 17 Because these two requirements differ somewhat in their applicability, 18 we consider them separately.
While the present case was pending, the Fifth Circuit held that the "adequate service" provision of section 404(a)(1) of the Act provides Board authority to regulate smoking. 19 According to the intervenors, that interpretation of the Act is incorrect because Congress intended to commit only economic regulation to the Board, and to leave details of passenger comfort to the absolute discretion of each airline. We disagree.
The phrase "adequate service" is not defined by statute, nor is there any specific reference to its meaning in the Act's legislative history. The historical context of the Board's creation, however, supports a broad interpretation of the Board's regulatory authority. 20 Congress established the Board in response to chaos in the industry during the 1930's, 21 which had resulted primarily from economic instability and fierce competition. 22 In 1934, Congress established the Federal Aviation Commission to provide "recommendations of a broad policy covering all phases of aviation and the relation of the United States thereto." 23
The Commission envisioned the creation of an agency with broad power to regulate both the quality and quantity of service provided by carriers. 24 Its report recommended that 25 The Commission recognized, however, that some competition would improve the service offered. 26 Accordingly, it suggested that Congress articulate a general desire for both regulation and competition, and entrust the new agency to strike the proper balance between them. 27
Congress appears to have followed that suggestion. In instructing the Board to regulate in the public interest, it directed the Board to consider both "[t]he promotion of adequate ... service" and "[c]ompetition to the extent necessary to assure the sound development of an air-transportation system...." 28 Thus, it appears that Congress gave the Board authority to determine minimum quality standards when balancing the need for regulation against the benefits of competition.
Board authority to regulate quality of service does not conflict with section 401(e)(4) of the Act, 29 which provides that certificates issued by the Board may not "restrict the right of an air carrier to add to or change schedules, equipment, accommodations, and facilities for performing the authorized transportation and service as the development of the business ... shall require ...." On its face, this provision admittedly seems to preclude regulation of quality of service by the Board. But that interpretation proves too much, for it is clear that the Act authorized the Board to regulate several aspects of airline service that such an interpretation would prohibit. 30 Thus, the section cannot be taken as an "absolute restriction on actions the Board may take to further other statutory goals." 31 Instead, the provision gives guidance in evaluating whether a particular regulation ignores the congressional desire for competition. 32 It makes clear that the Board cannot require agency approval of every change in an airline's service consistent with that already certified. The section does not, however, prohibit Board regulation of quality of service.
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