On January 17, 2017, the United States House of Representatives passed H.R. 5, the “Regulatory Accountability Act of 2017.” Buried deep within its pages is Title II, the “Separation of Powers Restoration Act.” That title, although only two sections long, dramatically changes the legal landscape for challenges to the actions of federal regulatory agencies. Currently, in adjudicating challenges to administrative rulemaking and implementing actions, the federal courts invoke the precedent established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844 (1984). In that case, the Supreme Court held: “We have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer…” In adopting Chevron, the Supreme Court effectively gives administrative agencies almost complete deference, not only in the interpretation of the regulations they implemented, but also, and more controversially, in the way the agencies carry out the mandates of those regulations. Thus, challengers seeking to use the judicial system to point out and rectify what are perceived as misapplication of the regulations, butt up against the reluctance of the courts to question or interfere with the agency’s construction of the regulation or the evidence and its application in carrying out the agency’s order. In Title II, the Congress has stood the current deferential standard on its head.
While many members of the growing community of developers, manufacturers and operators of Unmanned Aircraft Systems (“UAS”) have expressed enthusiasm at the National Transportation Safety Board Administrative Decision in the Pirker case, Administrator v. Pirker, NTSB Docket CP-217, July 18, 2013, their reaction should be tempered by the law of unintended consequences. The outcome of the administrative action, which the Federal Aviation Administration (“FAA”) has since appealed, acknowledges not only the FAA regulation that is certain to arise as a result of the Congressional mandate contained in the FAA Modernization and Reform Act of 2012, Pub. L. 112-95, § 334 (“FMRA”), but also opens the door to unrestricted local regulation.
Specifically, Pirker’s argument is based on the assumption that the UAS at issue is a “five-pound radio-controlled model airplane constructed of styrofoam [sic],” Motion to Dismiss, p. 1. He does not cite, or even refer to, any operant statutory or regulatory definition of “model aircraft.” On that basis, Pirker alleges that his operation of the “model airplane” cannot be regulated because FAA has “fallen far behind its own schedule, as well the scheduled mandated by Congress,” Motion to Dismiss, p. 1, for enacting regulations. Pirker again fails to refer the Court to the full extent of the Congressional mandate in FMRA which effectively disposes of his fundamental argument.