Competitive Enterprise Institute v. United States Department of Transportation
2017 U.S. App. LEXIS 13112
| D.C. Cir. | 2017Background
- Since 1987 (and extended in 2000) Congress made it unlawful "to smoke" on scheduled passenger flights; DOT/FAA regulations implement that ban. 49 U.S.C. § 41706 is central to the dispute.
- DOT issued a rule (finalized 2016) defining "smoking" to include electronic cigarette use ("use of ... electronic cigarettes ... that produce a smoke, mist, vapor, or aerosol") and relied on § 41706 and § 41702 as authority.
- DOT cited limited but growing scientific studies suggesting e‑cigarette vapor can emit potentially toxic chemicals and stressed precaution in the confined aircraft environment; airlines already largely prohibit e‑cigarette use.
- Petitioners (Competitive Enterprise Institute, Consumer Advocates for Smoke‑Free Alternatives Association, and e‑cigarette user Gordon Cummings) sought review, arguing DOT exceeded statutory authority, acted arbitrarily, and failed to follow notice‑and‑comment requirements.
- The D.C. Circuit applied Chevron step‑one to § 41706, assessed ambiguity in the term "smoking," reviewed DOT’s rulemaking record (health studies, passenger perception, enforcement benefits), and considered procedural challenges about new studies cited in the final rule.
- The court upheld the DOT rule under § 41706, finding the statute ambiguous as to e‑cigarettes, DOT’s interpretation reasonable, the rule not arbitrary, and no procedural defect requiring vacatur.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "smoking" in 49 U.S.C. § 41706 covers e‑cigarette use | "Smoking" requires burning/lighting; e‑cigs heat liquid and do not "smoke" | Text and contemporaneous dictionaries support reading "smoking" to include inhaling/exhaling fumes or vapor; DOT interpretation reasonable | Court: § 41706 ambiguous as to e‑cigs; DOT’s inclusion of e‑cigs as "smoking" is reasonable (Chevron step 1→deference) |
| Whether the rule is arbitrary or unsupported by evidence | DOT lacks definitive proof e‑cig vapor harms bystanders; benefits speculative; precautionary approach insufficient | DOT relied on multiple studies, passenger involuntary‑exposure concerns, enforcement and perception benefits; cost minimal | Court: Not arbitrary — agency made a rational connection between facts and the ban (State Farm standard) |
| Whether DOT violated notice‑and‑comment by citing new studies in final rule | DOT introduced critical new evidence in final rule without giving comment opportunity | DOT’s new studies were supplemental, confirmatory, not critical new data | Court: No procedural violation; supplementary studies acceptable where they expand/confirm prior record |
| Whether alternative statutory authority (§ 41702) needed or relevant | Petitioners relied on § 41702 arguments for arbitrariness/procedure | Court noted § 41702 applies to U.S. carriers only; unnecessary to reach because § 41706 upheld | Court: Decision affirmed on § 41706 ground; did not decide § 41702 question |
Key Cases Cited
- Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) (agency interpretation of ambiguous statute reviewed for reasonableness)
- Sottera, Inc. v. FDA, 627 F.3d 891 (D.C. Cir. 2010) (e‑cigarette nicotine solution derived from tobacco; FDA can regulate as tobacco product)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary and capricious review requires rational connection between facts and agency action)
- Perrin v. United States, 444 U.S. 37 (1979) (statutory words given their ordinary meaning at time of enactment)