Law

Grounding Chevron

A federal appeals court in Washington, D.C. recently struck down a rule requiring recreational drone users to register their devices with the Federal Aviation Administration.  The decision—Taylor v. Huerta—is an important victory for the rule of law and a lasting example of the appropriate exercise of the judicial power to scale back regulatory overreach.

The FAA rolled out its registration requirement in late 2015 as a safety measure designed to protect the skies from irresponsible and uninformed flyers of small unmanned aircraft—“drones.”  The new regulatory regime required both commercial and recreational drone operators to provide contact information, pay a $5 registration fee and obtain a unique FAA-issued identifier number to affix to drone before flying.  Failure to register carried civil and criminal penalties, including up to three years’ imprisonment.

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While close to 800,000 drone operators have registered to date, airplane hobbyists have objected to the Registration Rule since its inception.  The rule, after all, was borne out of a rushed attempt to manage the anticipated sale of millions of new drones weighing about half a pound or more during the holiday season. In November 2015, the FAA convened an industry working group to make formal recommendations about which “aircraft should be exempt from registration due to a low safety risk, including toys and certain other small [drones].”  Members of the registration task force had a mere 30 days to develop the regulatory platform, which the FAA proceeded to formalize its final Registration Rule in December 2015 on an emergency basis.

The FAA never explained why or how a mandatory registration rule extended to hobby drones flown in backyards below the national airspace (approximately 500 feet) enhanced public safety.  Although the FAA released a list of 650 “possible encounters with unmanned aircraft” between November 2014 and August 2015, the agency provided no data to differentiate the real danger of small drones flying near airports versus passing encounters and reports from the public.  What is more, the FAA never explained how a registration requirement for model aircraft would accomplish (or has since accomplished) the overarching objective of identifying, deterring, and taking enforcement action against unscrupulous and anonymous drone operators who have no incentive to voluntarily comply with the law.

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But the most significant objection to the Registration Rule was the legality of the rule itself as applied to hobby drones.  That was the key issue in Taylor v. Huerta­, a case brought by a Maryland lawyer, who argued that the FAA had no authority to create the Registration Rule and compel him to register his hobby airplane.  His argument was based on a law Congress enacted in 2012—the FAA Modernization and Reform Act—which explicitly prohibits the FAA from creating “any rule or regulation regarding a model aircraft.”

Despite the Act’s clear language, the FAA insisted that its Registration Rule was a not a new rule or one that conflicted with the Act, but a continuation of a 1920s-era rule requiring the registration of manned aircraft. Therefore, the FAA argued, the Registration Rule was as an “exercise of its discretion” of a pre-existing authority to “create a culture of accountability and responsibility among all [drone] operators.”  Flying under the radar was the fact that the FAA had never interpreted its registration requirement to apply to the model aircraft community, which has operated in accordance with a community-based set of safety guidelines under the auspices of a nationwide organization, the Academy of Model Aeronautics, since 1936.

The FAA’s arguments might have taken off under a 1984 decision by the U.S. Supreme Court—Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.—by which courts defer to agency expertise, judgment, and interpretation.  But, perhaps mindful of Justice Neil Gorsuch’s description of Chevron as “a judge-made doctrine for the abdication of the judicial duty,” the three-judge panel of the U.S. Court of Appeals for the D.C. Circuit did not defer to the FAA as the judge, jury, and enforcer of its own rules.  Instead, the court did what the Constitution qualifies only courts to do—to say what the law is, and to interpret the text and structure of a statue enacted by Congress.

As Circuit Judge Brett Kavanaugh wrote in the court’s unanimous opinion, this was easy in the Taylor case: “Statutory interpretation does not get much simpler.”  The Registration Rule is unlawful as applied to model aircraft because it was an attempt by an administrative agency to make a new rule despite Congress’ express prohibition against the promulgation of a “rule or regulation regarding a model aircraft.”  The court was blunt in addressing the FAA’s strained argument: “You’re just making stuff up… that’s not what the statute says.”

In reaching its decision, the Taylor court not only confined regulators to their explicit legal authority, it also declined the Chevron invitation to substitute its own judgment for that of Congress.  In fact, the court noted that “Congress is of course always free to repeal or amend its 2012 prohibition on FAA rules regarding model aircraft. Perhaps Congress should do so.  Perhaps not.”  It is not for the court to say, but neither is it for the FAA.

The Taylor case provides an important example of how well (or not) the law adapts to technological innovations in the drone age.  And, in a broader context, by carefully navigating between the Scylla and Charybdis of judicial deference and overreach, the Taylor court demonstrated how traditional 18th Century constitutional doctrines of separation of powers and judicial restraint remain relevant for reigning in the modern regulatory state.