As more Americans have returned to the air in recent weeks, many have confronted a disturbing reality: nearly full planes with passengers seated shoulder to shoulder. Once just an unwanted nuisance, this long-standing feature of airline travel is perilous and potentially fatal in the age of COVID-19.
While experts recommend distancing on airplanes as much as possible—urging high-risk individuals to be especially cautious—many airlines have nonetheless eschewed basic measures to ensure social distancing, and rightfully received widespread condemnation. Sen. Jeff Merkley of Oregon lambasted airlines that book flights to full capacity and announced he will introduce legislation to temporarily ban the booking of middle seats. Top health officials like Dr. Anthony Fauci and Dr. Robert Redfield expressed dismay and urged consumers to be cautious. And several airlines are voluntarily limiting booking, likely in hopes of prying fearful customers from competitors.
But a battle-tested mechanism to protect safety for airline passengers already exists and could be applied immediately to reduce passenger capacity—if only the Trump administration were willing to do it.
The Federal Aviation Administration is charged with promoting safety in the airline industry, and for more than six decades it has used that authority by issuing binding regulations to protect passengers, providing a margin of safety that the airline industry would not provide if left to its own devices. Because of the FAA, planes are properly manufactured and maintained, pilots are adequately trained and rested, and aircraft are stocked with necessary lifesaving equipment in case of emergency.
Taking a page from this playbook, the FAA can and should move immediately to limit passenger capacity to better ensure safety during the pandemic. Though hardly a panacea for a contagious virus, measures such as banning sales that cause passengers to sit immediately adjacent to one another would go a long way toward protecting the public. This includes banning middle seats or other seats based on aircraft configuration, such as every other seat in airplanes with two-by-two seating arrangements. (Exceptions could be allowed for families who book together.) Additional mandates such as cleaning and onboarding procedures may also be beneficial.
Why hasn’t the FAA already taken this common-sense step? After all, the agency has acknowledged that COVID-19 can spread when passengers and crew do not maintain appropriate distance on board an aircraft, echoing similar guidance from the Centers for Disease Control and Prevention. And the FAA has taken other urgent actions in response to the pandemic, such as suspending training and qualification requirements that could not be met and doling out billions of dollars of relief to affected companies.
The answer lies largely in the fact that the FAA is an executive agency whose administrator was appointed by President Donald Trump and confirmed in a party-line Senate vote. An arm of the Department of Transportation that takes cues from the White House and high-level executive branch officials, the FAA has unsurprisingly shown itself to be eager to assist the airline industry, just as it has been reluctant to protect passengers and crew members. After all, this lopsided regulatory approach is par for the course in this administration.
While many companies are facing economic hardship resulting from the pandemic, federal agencies have responded by suspending enforcement of key safety and environmental regulations that the public relies upon for long-term health and safety. Yet the administration has generally been hands-off when it comes to protecting the public from this dire health emergency. Numerous agencies have released guidance with suggestions for protecting consumers and employees but generally declined to issue enforceable or legally binding rules to that effect.
This approach fits within the Trump administration’s broader playbook. Starting from day one, the administration has dismantled regulations that were put in place to ensure public health and well-being. This has hurt the public far more than it has benefited industry, sometimes causing thousands of preventable long-term deaths with a single pen stroke. While the administration’s anti-regulatory agenda is deadly in normal times, the dire consequences are now all the more pronounced.
There are some potential downsides to the FAA forcing airlines to book fewer passengers, though none should stop the agency from acting immediately. For one, limiting capacity could exacerbate the economic hardships facing the airline industry—though, as noted above, some airlines are already voluntarily undertaking restrictions and thus apparently determining that any hit is manageable for them. The FAA can continually evaluate the impacts of any regulation and modify it as more information comes to light. Particularly since taxpayers have provided the airline industry with extraordinary aid in recent months (with more potentially to come), sensible controls on the industry to protect passengers are hardly unreasonable.
Another genuine concern is that limiting passenger capacity could mean more flights in the air, increasing planet-warming greenhouse gases that the industry already emits at an alarming rate. But let’s be honest: This administration has demonstrated a dangerous antipathy toward controlling greenhouse gas emissions, so this legitimate concern is not what’s motivating the FAA’s inaction here. Once again, the FAA should study the impacts of a capacity rule—weighing the public health benefits against the harm from additional emissions—and modify it as necessary. The existence of this trade-off also underscores the urgency for the government to require dramatic reductions in airline pollution through technology-forcing regulations.
Finally, the FAA would need to bypass normal regulatory procedures for a rule to take immediate effect, which is permissible only in narrow circumstances such as a public health or safety emergency. A once-in-a-century pandemic surely qualifies. Ironically, the Trump administration has previously sought to bypass these procedures simply to avoid welfare-enhancing regulations that it did not want to enforce—a tactic courts widely rebuked.
While the nation reels from the COVID-19 pandemic, federal agencies seem far more interested in boosting affected industries than protecting the public. These options are not mutually exclusive. While the government is taking extraordinary steps to assist the airline industry, the FAA should protect passengers and crew members by immediately limiting in-flight capacity.