Air Line Pilots Ass'n, Intern. v. C. A. B., s. 1050
| Decision Date | 27 May 1975 |
| Docket Number | D,1051,Nos. 1050,s. 1050 |
| Citation | 516 F.2d 1269 |
| Parties | AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, and Captain Eugene L. Cochran, Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent. ockets 75-4049, 75-4055. |
| Court | U.S. Court of Appeals — Second Circuit |
Daniel M. Katz, Washington, D. C. (Gary S. Green, Washington, D. C., on the brief), for petitioners.
David E. Bass, Atty., C. A. B., Washington, D. C. (Thomas J. Heye, Gen. Counsel, Glen M. Bendixsen, Associate Gen. Counsel, Robert L. Toomey, Atty., C. A. B., Washington, D. C., Thomas E. Kauper, Asst. Atty. Gen., Lee I. Weintraub, Atty., Dept. of Justice, Washington, D. C.), for respondent.
Louis J. Lefkowitz, Atty. Gen. of N. Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., Philip Weinberg, John F. Shea, III, Asst. Attys. Gen., Walter Morris (Second Year Law Student, of counsel), for amicus curiae State of New York.
Lawrence W. Bierlein, Washington, D. C., for amicus curiae Council for Safe Transportation of Hazardous Articles.
Reuben B. Robertson, III, Washington, D. C., for amici curiae Aviation Consumer Action Project, and others.
Before LUMBARD, HAYS and MULLIGAN, Circuit Judges.
The issues underlying this litigation are of considerable importance since they involve the transportation by air of hazardous materials and therefore the implicit menace to human life. The petitioners, the Air Line Pilots Association and an individual pilot (ALPA), have taken an active role in attempting to secure an overhaul of existing regulations and an effective inspection and enforcement program. The ALPA brief on appeal lists a litany of complaints which are not contested in the record before us. Under the Federal Aviation Act of 1958, 49 U.S.C. § 1301 et seq., safety regulations for the transportation of air cargo are the responsibility of the Department of Transportation (DOT) and the Federal Aviation Administration (FAA). 49 U.S.C. §§ 1421 & 1655. We note at the outset that neither agency is a party to this appeal. FAA regulations define "dangerous articles," which include explosive, flammable, corrosive, poisonous and radioactive materials. 14 C.F.R. § 103.1. In addition, the definition includes "hazardous materials," which are defined in DOT regulations. 49 C.F.R. Pts. 170-89. Since hazardous materials are shipped to and from air terminals by rail and motor carriers, all regulations for air transportation have to be integrated and correlated with other requirements applicable to those materials while transported by other modes of transportation. We are advised that the DOT/FAA regulations defining dangerous and hazardous materials alone take up some 280 pages of print and the packaging regulations consume over 360 printed pages.
Presumably, the hazardous materials when appropriately labelled and packaged can be transported safely by air. However, the ALPA brief on appeal, with copious and uncontested references to reports and testimony at congressional hearings, 1 contends rather convincingly that the regulatory scheme has been a dismal failure. In essence, shippers have failed to comply with existing regulations whether because of their complexity, ignorance of their existence or perhaps because they are overbroad. Moreover, it is urged that neither the air carriers nor the agencies involved (FAA/DOT) have monitored or enforced the existing regulations.
As a result of the general dissatisfaction, several significant events have recently transpired:
1) The Congress enacted the Transportation Safety Act of 1974 (effective January 3, 1975), which declared that it was the policy of Congress to "improve the regulatory and enforcement authority of the Secretary of Transportation to protect the Nation adequately against the risks to life and property which are inherent in the transportation of hazardous materials in commerce." Pub.L.No.93-633, § 102, 88 Stat. 2156, codified as 49 U.S.C. § 1801. The Act gives the Secretary broad powers in establishing criteria for handling hazardous materials, promulgating regulations, requiring shipper registration statements, conducting investigations and inspections, and establishing a technical staff. The statute further sets forth both civil and criminal provisions for violation and authorizes the Attorney General, at the request of the Secretary, to bring actions for equitable relief, as well as punitive damages, to redress violations of Title I () and of rules or regulations issued thereunder. Moreover, the Secretary is mandated within 120 days of the effective date of the Act to issue regulations with respect to the transportation of radioactive material. 2
2) As of February 1, 1975, ALPA initiated a program, Safe Transportation of People (STOP), which effectively barred from all passenger aircraft, and to some extent cargo planes, all hazardous and dangerous materials as defined in existing FAA and DOT regulations; under the STOP program, ALPA pilots would not fly any planes on which hazardous materials were carried. Certain critical medical supplies, dry ice used to refrigerate perishable goods, and magnetic materials, when properly marked, labelled, packaged, segregated, loaded and stowed, were excepted from the STOP program. ALPA has announced that air carriers, labor organizations and shippers have cooperated with the STOP program and that not a single pilot has been disciplined for his refusal to fly hazardous material.
3) A number of airlines filed notices of embargo pursuant to regulations of the respondent Civil Aeronautics Board (CAB), 14 C.F.R. § 228.1 et seq., in which they announced their refusal, as of February 1, 1975, to carry hazardous materials, with exceptions generally in line with those exempted from the STOP ban. In general, the airlines involved announced that their reason for the embargo of hazardous materials was not only their dissatisfaction with the adequacy and enforcement of safety regulations governing the transportation of such cargo, but also their inability to carry such materials because of the refusal of ALPA members, in accordance with STOP, to fly aircraft with hazardous freight.
With this background in mind, we approach the rather narrow issue posed by this appeal. On February 10th and 14th, 1975, DOT, pursuant to 14 C.F.R. §§ 302.201 and 302.502, made formal complaints to the CAB against the transportation restrictions of the airlines. 3 The DOT argued essentially that the DOT/FAA were vested with exclusive regulatory jurisdiction with respect to the transportation by air of hazardous materials; that the FAA, pursuant to the authority delegated by the Secretary of Transportation, had promulgated uniform regulations concerning the air transportation of such cargo, 14 C.F.R. Pt. 103; that because of such regulations individual carriers were precluded from ad hoc regulations; that under the Transportation Safety Act of 1974 the Secretary of Transportation had been recently vested with broad new authority, and, pursuant thereto, the Secretary was obligated to promulgate additional regulations which must prohibit on passenger-carrying aircraft the transportation of radioactive materials, except those used in or incident to research or medical diagnosis or treatment, provided that such materials do not pose an unreasonable hazard to health and safety, 49 U.S.C. § 1807(a); that the FAA has prescribed regulatory procedures (14 C.F.R. Pt. 11; see also 5 U.S.C. § 553) permitting carriers and other persons to challenge any category of hazardous materials otherwise presently permitted to be shipped by air; and that none of the respondent airlines had petitioned the FAA for rule making with respect to the transportation of such cargo. The DOT concluded that the embargoes of the airlines violated their common carrier responsibilities and created an unjust discrimination or undue or unreasonable prejudice or disadvantage in violation of 49 U.S.C. § 1374(a) & (b).
On February 25, 1975, ALPA responded in opposition to the DOT's complaints, urging that, until that agency exercised its new responsibilities under the Hazardous Materials Transportation Act of 1974 (Title I of the Transportation Safety Act of 1974) and undertook an effective program of education, inspection and enforcement, the regulations would be ignored or misapplied by the shippers of hazardous freight and the STOP program would therefore have to remain in force. Moreover, ALPA, citing 49 U.S.C. §§ 1421 & 1511, insisted that the carriers and the pilots have the right to impose higher safety standards than the "minimum safety standards" set by DOT/FAA and have the right to decline to accept freight deemed to be unsafe.
On February 28, 1975, the CAB adopted Order No. 75-2-127, which rejected the "embargo notices" filed by nine of the carriers. The Board noted that the primary responsibility for the regulation of the transportation of hazardous materials by air rested with the DOT and FAA; that the embargoes were "in complete divergence with the FAA regulations and any proposals or legislation to modify them; " that the embargoes were in derogation of the carriers' common-carrier obligation to carry cargo; and that the Board did not consider that its embargo regulations "embrace the matters set forth in the above noted embargoes."
ALPA then filed a petition for reconsideration and for a stay of the Board's order. Before the CAB responded, ALPA filed a petition for review of the order and motion for a stay with this court on March 13, 1975. Subsequently, on March 19, 1975, the CAB adopted Order No. 75-3-61, which denied ALPA's request for a stay but deferred action on the petition for reconsideration of Order No. 75-2-127 in order to allow the parties and interested persons an opportunity to respond to the petition. On March 25, 1975, this court granted petitioner's motion for an expedited appeal and granted a stay of CAB...
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