Wrong of Way

On August 3, New York governor Eliot Spitzer signed a “bill of rights” for air travelers in New York state. The law provides that passengers who have boarded a plane but have been delayed from takeoff for three hours or more must have access to “amenities” like fresh air, power, lavatories, food, and water. The law also sets up an official “Airline Consumer Advocate” to handle complaints. Penalties for failing to provide these services can be steep: up to $1,000 per passenger.

This comes on the heels of a woeful summer, spring, and winter of airport delays and passengers trapped on immobile planes, most notoriously JetBlue’s February fiasco at John F. Kennedy International Airport, which saw passengers stuck in planes for up to eleven hours.

Agitation for a federal passenger’s bill of rights reached a fever pitch shortly after the JetBlue meltdown, but nothing has come of it so far in Washington.  The best thing that can be said about New York’s new law is that it doesn’t force airlines to let passengers off planes. That measure, part of the federal passenger’s bill of rights introduced earlier this year by Senator Barbara Boxer (D-Calif.), would have wreaked havoc on airline schedules and business practices, affecting not only people on the plane, but people traveling through airports everywhere. It would have forced airlines to preemptively cancel many flights in order to preserve as much of their original schedules as possible and avoid the risk of massive penalties, leading to—perhaps—days-long waits in crowded hubs. Airlines don’t devilishly cloister their passengers on the ground for hours for fun. They do it because at the time, it seems better than the alternative.

It is remarkable that as our airline industry finally reaches pre-9/11 capacities and a measure of financial health, the government response is to pile on regulation. The New York law will force airlines to change practices related to maintenance, catering, and logistics in ways that may increase delays and will inevitably raise fares in New York markets and make the state less competitive—that is, if the law is not struck down first.

A state passenger’s bill of rights flies in the face of federal law, which provides that “a State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier. . . .” (49 U.S.C. § 41713[b][1]). As Kenneth Nankin at The NV Flyer writes, “A few state statutes have escaped the grasp of federal preemption because they were not intended to affect airline operations and did so only remotely, but that is not the case here. The New York bill is expressly aimed at airline operations and could significantly impact them.”

Federal law reserves the right to regulate air travel (which, in the case of New York, is mostly interstate and foreign commerce anyway). Applied here, the doctrine of federal preemption protects a global industry like aviation from being subject to hundreds of parochial authorities. As Michael Greve and Richard Epstein argue in Federal Preemption, “Where federal statutes can reasonably be read to create exclusive federal or state jurisdiction, courts should cement that arrangement.”

Federal preemption is even more important in this case. As in other areas, local rules in New York could easily go nationwide. According to the legislative summary, “New York is home to some of the world’s busiest airports, and so should take the lead in adopting common sense measures that empower consumers and prevent outrageous incidents like these from recurring.”

The law, and Spitzer’s statement upon signing it (“As a major international travel hub, it is our duty to take the lead in adopting measures that will ease air travel for passengers.”), make it clear that New York’s measures are meant to inspire copycats. An appeal of the law by the airline lobby should nip this in the bud. This bill of rights will likely be found wanting in the court of law, but if not there, it will definitely be found deficient in the court of good business sense.

This article was originally published on American.com on August 14, 2007.