The skies of American aviation face potential turbulence, not from weather patterns, but from a recent Supreme Court decision that could significantly impact the future of Advanced Air Mobility (AAM). The landmark case, Loper Bright Enterprises v. Raimondo, has overturned the long-standing Chevron Doctrine and could potentially alter how aviation regulations are interpreted and implemented. We recommend the industry start taking certain steps now, to keep AAM flying.
The Chevron Doctrine’s Demise
For nearly four decades, the Chevron Doctrine (also known as Chevron Deference) allowed courts to defer to administrative agencies’ expertise when interpreting ambiguous federal laws. Courts recognized the specialized nature of administrative agencies and maintained reluctance toward intervening on complex, technical matters. This principle was particularly crucial for the Federal Aviation Administration (FAA), whose technical knowledge has been instrumental in shaping aviation policy and safety standards over the years.
The Supreme Court’s recent ruling in Loper Bright Enterprises v. Raimondo has shifted this landscape. It sets a new precedent. If the text of a federal regulatory law is confusing or ambiguous (either intentionally or unintentionally), then instead of favoring the interpretation of a given administrative agency (who are qualified experts in the applicable field), federal judges have now claimed independent judgement in these matters.
This landmark decision could tempt courts to interpret laws according to their own policy preferences, instead of the policy recommended by the agency implicitly delegated authority by Congress. That risk is precisely what the majority in Chevron attempted to mitigate.
Implications for Advanced Air Mobility
In light of this recent development, the FAA, experts in aviation matters that involve keeping the public safe, may be challenged (and potentially overturned) more often regarding how they implement aviation regulations.
According to the Legal Information Institute at Cornell Law School, when determining the “reasonableness for the particular construction of a statute by the agency, the age of that administrative interpretation… would be a useful guide.”
For traditional aviation, presumably many of the long-standing FAA policies and practices will remain unchanged unless there was a very compelling reason to strike down. Conversely, the limited age of brand new statutes could help to justify rulings counter to FAA recommendations.
This legal shift comes at a critical time for the AAM industry as the FAA focuses on new regulations for electric vertical takeoff and landing (eVTOL) vehicles and uncrewed aerial systems (UAS). As the FAA works to integrate these technologies into existing airspace, the new legal precedent could introduce significant challenges and uncertainties. Some areas of concern include:
- New regulations for powered lift pilot licensing
- UAS Traffic Management (UTM) requirements
- Infrastructure specifications for vertiport designs
We echo the concerns of the Public Policy Institute of California that the Chevron Doctrine had rightly allowed agencies, including the FAA, “to keep pace with changing conditions and new scientific understanding,” but that this new SCOTUS decision will likely handcuff administrative agency power through ‘plain meaning’ statutory interpretations by the courts.
AAM remains a rapidly evolving sector of aviation. Even the FAA struggles to keep pace as the agency faces the reality of its own limited resources. Still, the responsible path forward necessarily prioritizes their deep subject matter expertise. Many parts of the world still look to the FAA for guidance, especially in the midst of uncertainty.
The Risk of Politicization
One of the most pressing concerns is the potential for aviation regulations to become politicized. If AAM becomes a partisan issue, judges appointed by opposing parties could interpret regulations in ways that create unnecessary barriers to adoption.
This politicization could hinder the industry’s progress and public acceptance, as demonstrated by the recent case of Paris City Councilors, which prohibited eVTOL operations during the Olympics due to misconceptions about the technology’s utility and environmental impact. In that case, city councilors equated all of AAM with a single use case: air taxi services. They voted to prohibit eVTOL operations during the Paris Olympics as a “totally useless, hyper-polluting gimmick for a few ultra-privileged people in a hurry.” US federal judges may similarly lack the scientific understanding and awareness of the myriad public safety and disaster relief use cases in which AAM technology can excel if given the chance.
Administrative agency experts are certainly not perfect. Indeed, courts during the Chevron Deference period struck down the rules made by all administrative agencies, on average, 30% of the time when faced with legal challenge. As courts are not subject to review by the agency experts, the only check that remains is the passing of yet another new law by Congress directly on the matter and in unambiguous terms – including matters in which Congress (like the courts) lacks expertise.
The Path Forward
At the Advanced Air Mobility Institute our mission is “to educate and advocate for the broadest public benefit through the aviation ecosystem globally.” We believe that by fostering strong public acceptance and working closely with legislators and regulators, the AAM industry can navigate any potential legal challenges and continue to shape the future of aviation technology in the National Airspace. To mitigate the potential effects of the Loper decision on AAM, we recommend industry stakeholders take these proactive steps now.
Craft a Unified Public Message About AAM’s Benefits
AAM industry stakeholders who value the U.S. market need to invest the time and resources to craft a unified message to the American public to make them aware, with a coherent and convincing pitch, that the benefits of these new technologies far outweigh the costs. Otherwise, our window of opportunity to reach everyday citizens and secure public acceptance could effectively be closed before operations even begin.
Engage with Congress For Explicit FAA Authority
Next, we need to educate members of Congress on the broad public benefits of AAM and urge them to explicitly grant authority to the FAA to interpret how to implement every new aviation statute that involves emerging aviation technology. For the past 40 years Congress has frequently leaned on the advantages of Chevron Deference and intentionally drafted ambiguous language knowing that the FAA would fill in the gaps and take the blame if there was any backlash.
Advocate for Precise Statutory Language
Finally, we all need to advocate for the FAA to thoroughly define and advise Congress on the necessary standards of interoperability and safety of flight for AAM aircraft. The more precise language in aviation statutes that limits judicial reinterpretation that can be incorporated into aviation statutes from the outset, the less latitude judges have to re-interpret text to align with their own views.
At the Advanced Air Mobility Institute, we commend the FAA’s forward-thinking leadership that continues to balance safety with the societal benefits of aviation innovation. We believe the FAA deserves continued deference from courts on both matters – safety and innovation. We also believe that strong public acceptance for AAM is the best way to incentivize Congress to legislate clearly so the FAA’s expertise can rightfully determine the future of emerging aviation technology in our National Airspace System. Only then will our AAM industry continue to remain poised for growth.