741 F.3d 1309
D.C. Cir.2014Background
- Lilliputian challenges a 2013 PHMSA final rule prohibiting airline passengers and crew from carrying flammable-gas fuel cell cartridges in checked baggage.
- Rulemaking harmonized with ICAO amendments that allowed spare cartridges with Division 2.1 materials in checked baggage, yet PHMSA retained a prohibition for such cartridges.
- ICAO amendments permit up to two spare cartridges; PHMSA’s 2011 Final Rule rejected that alignment and kept stricter U.S. restrictions.
- Lilliputian argued PHMSA failed to explain its risk-assessment method and to justify disparate treatment compared to medicinal/toiletry items containing similar hazards.
- Agency later solicited comments, considered new information, and issued the 2013 Final Rule denying the appeal with five stated justifications.
- Court remands to require a reasoned explanation addressing comments and the rationale for treating similarly situated items differently.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the disparate treatment rationalized? | Lilliputian contends no adequate explanation exists. | PHMSA relied on safety considerations and risk factors. | Remand for reasoned justification of disparate treatment. |
| Did PHMSA respond to significant public comments? | Agency failed to address key comments on IEC safety standards and comparisons. | Agency discussed cumulative risk and other factors. | Remand to address relevant comments with detailed reasoning. |
| Should the rule be remanded rather than vacated? | Vacatur would cause disruption; but rational explanation could preserve rule. | Need for adequate explanation before maintaining prohibition. | Remand appropriate to allow explanation while preserving the same outcome. |
Key Cases Cited
- Burlington N. & Santa Fe Ry. Co. v. Surface Transp. Bd., 403 F.3d 771 (D.C. Cir. 2005) (requires reasoned explanation and substantial evidence for disparate treatment)
- Thompson v. Clark, 741 F.2d 401 (D.C. Cir. 1984) (arbitrary agency decision must respond to relevant factors)
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (U.S. 1971) (arbitrary agency action standards and review)
- National Ass’n of Home Builders v. EPA, 682 F.3d 1032 (D.C. Cir. 2012) (responding to significant public comments is required)
- Black Oak Energy, LLC v. FERC, 725 F.3d 230 (D.C. Cir. 2013) (remand possible when explanation deficient but outcome possible)