A lawsuit filed by the legal action group Democracy Forward on behalf of the Paralyzed Veterans of America (PVA) may finally spur US Department of Transportation (DOT) rulemaking on accessible lavatories for single-aisle aircraft.

The suit claims deliberate inaction by the DOT, which admitted in court papers that accessible lavatories have not been “a top priority”.

The timeline of events shines more light on the worrying impact of the regulatory two-for-one Executive Order signed by President Donald Trump shortly after taking office, which puts the DOT and the FAA in a position to find at least two regulations that should be removed in order to add any new regulations to the books.

As the PVA, which participates in the DOT’s ACCESS Advisory committee, states in its suit, progress towards rulemaking for accessible bathrooms on single-aisle aircraft was long-delayed and then thwarted in 2018.

Congress has twice required the Department to issue rules governing accessible lavatories on commercial aircraft: first, in the 1986 enactment of the ACAA, when it directed the Department to issue rules within 120 days implementing the ACAA’s accessibility requirements, and second, in its enactment of the FAA Act of 2016, when it specifically directed the Department to propose the Lavatory Accessibility Rule by July 2017.

The Department has flouted these requirements by failing to issue the Lavatory Accessibility Rule; moreover, in removing that rule from the Unified Regulatory Agenda, it has indicated unequivocally that it has no intention of moving forward on it anytime soon. Such recalcitrance in the face of a congressional mandate warrants mandamus.

“Petitioners have standing to pursue this action, and this Court should intervene to compel the Department to comply with its statutory duties,” the suit, filed in November of last year, states.

The suit reveals that the DOT had moved the single-aisle lavatory accessibility rulemaking process to its long-term Regulatory Agenda in the spring of 2018, but then removed it entirely from the Regulatory Agenda published in the fall of 2018. It was this removal from the agenda that prompted PVA to file its lawsuit.

In its argument responding to the PVA suit, presented to the US Tenth Circuit Court of Appeals this Monday, the DOT and Secretary of Transportation Elaine L. Chao argue that the court has no jurisdiction to issue a writ of mandamus to compel the rule, and that the petition should be denied, but they also ask that the court allow the Secretary and the DOT to comply voluntarily.

In the introduction to their argument, the DOT states: “The Secretary of Transportation intends to issue a notice of proposed rulemaking addressing accessible lavatories on single-aisle aircraft no later than December 2, 2019.” It later added: “Mandamus relief is inappropriate where the Secretary is poised to issue a proposed rule.”

However, given the new complexities of regulatory change, especially with a clear mandate from the White House to cut regulations, the response from the DOT raises fresh concerns that nothing may happen without a broader call for action from the public and a more specific mandate from Congress.

“There is no statute or regulation that requires the Secretary to promulgate a final rule governing lavatory access,” the DOT states in its reply.

The DOT is only required to propose a rule and the process requires waiting for the results of an economic impact analysis that is already underway by the Volpe Center, among other hurdles. Furthermore, the DOT argues, “A proposed rule is not a final rule, and Congress nowhere mandated a final rule governing lavatory access.”

It states that the most recent FAA Reauthorization Act of 2018 “expressly requires the Secretary to ‘issue a final rule’ governing service animals within 18 months (by April 5, 2020) and provides substantive considerations for those regulations”, but it only requires “the Comptroller General to submit to Congress a report regarding aircraft lavatories. The Act does not state that the Secretary shall issue a final rule on lavatory access.”

However, one could argue that the DOT’s FAA has been making rules regarding single-aisle accessible lavatories, if indirectly.

The FAA approvals process for any new manufactured components in aviation constitutes rulemaking insofar as it sets the standards for build by requiring proof of compliance to standards before issuing certification. The FAA either requires compliance to established rules (such as technical standard orders, aka TSOs), or acceptance of a new design as being within the parameters of an existing design (approval through similarity), or through acceptance of the technical viability of a design modification through Supplemental Type Certificate (STC). All of these can be considered rules because they set the standards against which future design approvals might be granted.

By approving newer designs of single-aisle lavatories, which are narrower and less accessible than previous models, the FAA is effectively setting new standards (making new rules) that consider these operational parameters adequate.

The approvals of narrower and less accessible lavatories have been ongoing for newly approved single-aisle aircraft types, even as the DOT has delayed the rulemaking process to establish standards which might reverse this design trend.

These approvals only strengthen the “costs” argument against a rule for accessible single-aisle lavatories when the proposed rule finally sees the light of day. Trump’s two-for-one Executive Order expressly targets regulations that might raise any agency’s “total incremental cost allowance”. The FAA effectively has a “budget” for rules that it can add which constitute additional costs to the industry and that budget is limited.

In effect, by approving narrower lavatories, the FAA and DOT have laid the regulatory foundation. That doesn’t mean that an accessible single-aisle lavatory rule will not ultimately go into effect, but there will need to be a considerable clamor for it.

Despite the challenges ahead, the PVA marks the confirmation by the DOT that accessible lavatories for single-aisle aircraft is on the agenda as a win, at least for now. The group, as participants in ACCESS, have the wherewithal and determination to persist.

“Access to a restroom should be a basic human right, but for nearly two years the Department of Transportation has failed to follow Congress’s mandate to move forward with a rulemaking aimed at addressing restroom inaccessibility on airplanes,” said Paralyzed Veterans of America and its partnering legal action group, Democracy Forward, in a statement.

“In response to our lawsuit, the Department now states it will issue a proposed rule by December of this year. To ensure that the Department does in fact advance this rulemaking to provide vital travel protection to paralyzed veterans and other travelers with disabilities, we will continue to press forward with this case.”

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