Competitive Enter. Inst. v. U.S. Dep't of Transp.

• Decision Date: 21 July 2017
• Docket Number: No. 16-1128,16-1128
• Citation: 863 F.3d 911
• Parties: COMPETITIVE ENTERPRISE INSTITUTE, et al., Petitioners v. UNITED STATES DEPARTMENT OF TRANSPORTATION and Elaine L. Chao, in her official capacity as Secretary of the U.S. Department of Transportation, Respondents
• Court: U.S. Court of Appeals — District of Columbia Circuit

863 F.3d 911

COMPETITIVE ENTERPRISE INSTITUTE, et al., Petitioners

v.UNITED STATES DEPARTMENT OF TRANSPORTATION and Elaine L. Chao, in her official capacity as Secretary of the U.S. Department of Transportation, Respondents

No. 16-1128

United States Court of Appeals, District of Columbia Circuit.

Argued April 10, 2017

Decided July 21, 2017

Sam Kazman argued the cause for petitioners. With him on the briefs was Hans Bader.

Tara S. Morrissey, Attorney, U.S. Department of Justice, argued the cause for respondents. With her on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General at the time the brief was filed, Matthew M. Collette, Attorney, Paul M. Geier, Assistant General Counsel for Litigation and Enforcement, U.S. Department of Transportation, Robert M. Gorman, Trial Attorney, Paula Lee, Trial Attorney, and Blane A. Workie, Assistant General Counsel for Aviation Enforcement and Proceeding.

Before: Kavanaugh, Circuit Judge, and Ginsburg and Randolph, Senior Circuit Judges.

Randolph, Senior Circuit Judge:

The principal question is whether a statutory ban on "smoking" on airplanes may support a Department of Transportation regulation banning the use of electronic cigarettes. Two organizations and an e-cigarette user ask us to set aside the regulation on the ground that it is unlawful.

I.

Since 1973, federal law has regulated smoking on airplanes. Early regulations rested on a statute requiring "safe and adequate" in-flight service. See 38 Fed. Reg. 12,207, 12,208 (1973) (relying on Federal Aviation Act, Pub. L. No. 85-726, § 404(a), 72 Stat. 731, 760 (1958), amended by Pub. L. No. 92-259 (1972)). See also Action on Smoking & Health v. C.A.B. , 699 F.2d 1209, 1211 (D.C. Cir. 1983). In 1987, Congress declared it unlawful "to smoke" on scheduled passenger flights under two hours, and since 2000, the statutory smoking prohibition has extended to all scheduled passenger flights for travel within, to, and from the United States. See Pub. L. No. 100-202, § 328, 101 Stat. 1329, 1329-382 (1987); Pub. L. No. 106-181, § 708, 114 Stat. 61, 159 (2000) (codified at 49 U.S.C. § 41706 ). Department of Transportation regulations prohibit the same. 14 C.F.R. §§ 252.1 -252.5.

In 2010, during a Senate committee hearing, the Transportation Department claimed that the statutory smoking prohibition applied to a new device: e-cigarettes. Although analogues to the e-cigarette have existed for decades, most observers date the modern e-cigarette to 2003. The Department stated in the hearing that existing law "already banned" these increasingly popular devices on passenger airlines and that it planned to formalize its interpretation in a rulemaking. The Financial State of the Airline Industry and the Implications of Consolidation: Hearing Before the S. Comm. on Commerce, Sci., & Transp. , 111th Cong. 80 (2010).

The Department issued a notice in 2011 proposing a regulation defining "smoking" on airplanes to include e-cigarette use. See Smoking of Electronic Cigarettes on Aircraft, 76 Fed. Reg. 57,008, 57,009 (2011). The notice described e-cigarettes as consisting of three parts: "The replaceable cartridge, which most often contains liquid nicotine but may contain other chemicals, the atomizer or heating element, and the battery and electronics." Id. When the user inhales through the mouthpiece, "the electronics detect the air flow and activate the atomizer, the liquid nicotine is vaporized, and the user inhales the vapor." Id. at 57,010 (citation omitted). Although the Department noted that e-cigarettes heat rather than burn the liquid nicotine solution and produce a "vapor, rather than smoke," it claimed that e-cigarettes involve an "inhalation and exhalation similar to smoking cigarettes." Id. at 57,009 -10. The liquid nicotine solution is partly derived from tobacco plants and some evidence suggested that the exhaled nicotine vapor could harm non-users. Id . The Department therefore saw "no reason to treat electronic cigarettes any differently than traditional cigarettes." Id. at 57,009.

The Department rested its authority for the regulation on the two sections authorizing past aircraft smoking regulations. Id . The first prohibits "smoking" on scheduled passenger flights within, to, or from the United States. 49 U.S.C. § 41706. The second is the current iteration of the "safe and adequate" statute: it states that an "air carrier shall provide safe and adequate interstate air transportation." 49 U.S.C. § 41702. The Department invited comments on its statutory authority and the soundness of the rule. 76 Fed. Reg. at 57,009, 57,010.

After receiving more than 1000 comments, the Department issued its final rule defining e-cigarette use as "smoking."¹ The Department focused on the similarity between conventional cigarettes and e-cigarettes. "Like traditional smoking, e-cigarette use introduces a cloud of chemicals into the air that may be harmful to passengers who are confined in a narrow area within the aircraft cabin without the ability to avoid those chemicals." Use of Electronic Cigarettes on Aircraft, 81 Fed. Reg. 11,415, 11,420 (2016). Several studies "detected toxic chemicals" from the vapor produced by e-cigarettes. Id. The Department acknowledged that the "specific hazards" of e-cigarette vapor have not "yet been fully identified," but given the unique setting of air travel, it found a "precautionary approach" warranted. Id. The Department added that even "if second-hand exposure to e-cigarette" vapor were ever determined safe relative to tobacco smoke, "nearby passengers may still experience discomfort, stress or ... display aggression or fear because they believe their health is threatened." Id. at 11,424. The Department also noted that airlines on their own already forbid e-cigarette use: "99 percent of passenger enplanements occur on flights that prohibit smoking of any type, including both traditional cigarettes and e-cigarettes." Id. Incorporating these and other considerations into a qualitative cost-benefit analysis, the Department found the regulation warranted. Id. at 11,422, 11,425 -26. It relied on the two statutory sources discussed above.² Id. at 11,419.

The final rule defines smoking as the "use of a tobacco product, electronic cigarettes whether or not they are a tobacco product, or similar products that produce a smoke, mist, vapor, or aerosol, with the exception of products (other than electronic cigarettes) which meet the definition of a medical device in section 201(h) of the Federal Food, Drug and Cosmetic Act, such as nebulizers

." Id. at 11,427. The rule defines "smoking" for § 41706 as well as for Transportation Department and Federal Aviation Administration regulations. See 14 C.F.R. § 252.3 ; 14 C.F.R. § 121.317.

The Competitive Enterprise Institute, the Consumer Advocates for Smoke-Free Alternatives Association, and Gordon Cummings petitioned for judicial review. See 49 U.S.C. § 46110(a). Cummings submitted a declaration stating that he had used e-cigarettes on flights in violation of airline policies, but that he now no longer does so given the penalties for violating the regulation. See Decl. of Cummings at 1-2. See also 49 U.S.C. § 46301 (civil fine); 49 U.S.C. § 46316 (criminal fine). He has standing to challenge the rule. See, e.g. , Energy Future Coal. v. EPA , 793 F.3d 141, 144 (D.C. Cir. 2015). See also Americans for Safe Access v. DEA , 706 F.3d 438, 443 (D.C. Cir. 2013).

II.

Although the Department claimed in the rulemaking (and in its brief) that 49 U.S.C. § 41702 and § 41706 provide alternative authority for the rule, the sections are not co-extensive. The key difference is in their geographic scope. Section 41702 requires that an "air carrier"—defined as a "citizen of the United States undertaking ... to provide air transportation," 49 U.S.C. § 40102(a)(2) —"provide safe and adequate interstate air transportation." The prohibition "against smoking on passenger flights" in § 41706, on the other hand, covers both domestic and foreign air carriers for travel within, to, and from the United States. Because the regulation purports to extend the e-cigarette prohibition to this latter category of flights, see 81 Fed. Reg. at 11,419, we must first analyze whether § 41706 provides authority for the rule.

We begin with Chevron U.S.A. Inc. v. NRDC , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).³ We first ask whether Congress addressed the question at issue: does "smoking" in § 41706 cover e-cigarette use? See Nat'l Mining Ass'n v. Kempthorne , 512 F.3d 702, 708-09 (D.C. Cir. 2008) (citing Chevron , 467 U.S. at 842-43, 104 S.Ct. 2778 ). If Congress did not address the question, we next consider whether the Department's interpretation is reasonable. Id .⁴

Underlying petitioners' arguments and those of the dissent is the point that e-cigarettes did not exist in 1987 when Congress first made it unlawful "to smoke" on certain flights under two hours, nor did e-cigarettes exist in 2000 when Congress extended the prohibition. Although this means the legislators did not have e-cigarettes in mind when passing those statutes, that does not resolve the interpretive question.⁵ The text itself, rather than the subjective intentions of legislators, governs our review. See Oncale v. Sundowner Offshore Servs., Inc. , 523 U.S. 75, 79, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). We must ask whether the term "smoking" in a statute enacted before modern e-cigarettes existed covers these devices.

Petitioners maintain that "smoking" in § 41706 requires lighting or burning and does not encompass the heating that occurs with e-cigarettes. The statutory text alone offers no support for that position. Section 41706 employs the verb "smoke" in various formulations. Subsection (a) states that an "individual may not smoke" on certain domestic flights. Subsection (b) states that the "Secretary of Transportation shall require all air carriers and foreign air carriers to prohibit smoking" on certain foreign flights....