New York legislation is on collision course with federal statute

The New York State Legislature is close to enacting the “Consumer Bill of Rights Regarding Airline Passengers.”  The sponsors of S5050-C have cited ground delay incidents that occurred at New York airports in February and March 2007 as justification for the legislation.  They have stated that “New York is home to some of the world’s busiest airports, and we should take the lead in adopting commonsense measures that empower consumers and help prevent outrageous incidents like these from occurring.”

The bill provides in part as follows:

“Whenever airline passengers have boarded an aircraft and are delayed more than three hours on the aircraft prior to takeoff, the carrier shall ensure that passengers are provided as needed with:  (a) electric generation service to provide temporary power for fresh air and lights; (b) waste removal service in order to service the holding tanks for on-board restrooms; and (c) adequate food and drinking water and other refreshments.”

The bill also establishes an “Office of the Airline Consumer Advocate” and empowers New York’s attorney general to recover civil penalties, attorneys’ fees and costs from airlines that violate the law.

The problem is that a federal statute, 49 U.S.C. § 41713(b)(1), 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.”  The courts have interpreted this statute broadly, and they have consistently held that it preempts any state statute that potentially affects an airline’s flight operations, i.e., its service.  One federal court has already held that “[a] state law obligation to give courteous service . . . is expressly preempted” by 49 U.S.C. § 41713(b)(1).  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.

The bill’s sponsors are taking the position that the legislation would not be preempted because it only deals with the provision of “amenities” to passengers and does not require that airlines allow passengers to deplane.  However, provision of the required amenities is likely to affect how the airlines operate their flights.  For example, the waste removal service might require that an aircraft taxi back to the gate.  The bill goes beyond the mere provision of amenities, and that is why it is likely to be considered preempted by a court.

The bill provides that it is not to be “construed as requiring any carrier, airport or other entity to take any action in contravention of any written directive of the federal aviation administration or other federal agency having jurisdiction over such entity,” but that provision would not save the bill; its possible effect on airline operations is too far-reaching.  If the bill becomes law, it is only a matter of time until a court holds that it is preempted and thus unenforceable.

Preemption in this situation makes sense.  How could an airline succeed in operating throughout the country if it had to comply with 50 different state laws, and innumerable local ordinances, regarding ground delays?

Update:  In November 2007, “The Empire State’s New Airline Passenger ‘Bill of Rights’ – Gone in a New York Minute?”, an article I wrote analyzing why I believe that federal law preempts the New York law, was published in CCH’s Issues in Aviation Law and Policy (33,031 at 19,111).  Please contact me if you would like a complimentary copy of this article.


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