United States Court of Appeals, District of Columbia Circuit
April 10, 2017
Petition for Review of a Final Rule of the United States
Department of Transportation.
Kazman argued the cause for petitioners. With him on the
briefs was Hans Bader.
S. Morrissey, Attorney, U.S. Department of Justice, argued
the cause for respondents. With her on the brief were
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General at the time the brief was filed, Matthew M. Collette,
Attorney, Paul M. Geier, Assistant General Counsel for
Litigation and Enforcement, U.S. Department of
Transportation, Robert M. Gorman, Trial Attorney, Paula Lee,
Trial Attorney, and Blane A. Workie, Assistant General
Counsel for Aviation Enforcement and Proceeding.
Before: Kavanaugh, Circuit Judge, and Ginsburg and Randolph,
Senior Circuit Judges.
Randolph, Senior Circuit Judge.
principal question is whether a statutory ban on
"smoking" on airplanes may support a Department of
Transportation regulation banning the use of electronic
cigarettes. Two organizations and an e-cigarette user ask us
to set aside the regulation on the ground that it is
1973, federal law has regulated smoking on airplanes. Early
regulations rested on a statute requiring "safe and
adequate" in-flight service. See 38 Fed. Reg.
12, 207, 12, 208 (1973) (relying on Federal Aviation Act,
Pub. L. No. 85-726, § 404(a), 72 Stat. 731, 760 (1958),
amended by Pub. L. No. 92-259 (1972)). See also
Action on Smoking & Health v. C.A.B., 699 F.2d 1209,
1211 (D.C. Cir. 1983). In 1987, Congress declared it unlawful
"to smoke" on scheduled passenger flights under two
hours, and since 2000, the statutory smoking prohibition has
extended to all scheduled passenger flights for travel
within, to, and from the United States. See Pub. L.
No. 100-202, § 328, 101 Stat. 1329, 1329-382 (1987);
Pub. L. No. 106-181, § 708, 114 Stat. 61, 159 (2000)
(codified at 49 U.S.C. § 41706). Department of
Transportation regulations prohibit the same. 14 C.F.R.
2010, during a Senate committee hearing, the Transportation
Department claimed that the statutory smoking prohibition
applied to a new device: e-cigarettes. Although analogues to
the e-cigarette have existed for decades, most observers date
the modern e-cigarette to 2003. The Department stated in the
hearing that existing law "already banned" these
increasingly popular devices on passenger airlines and that
it planned to formalize its interpretation in a rulemaking.
The Financial State of the Airline Industry and the
Implications of Consolidation: Hearing Before the S. Comm. on
Commerce, Sci., & Transp., 111th Cong. 80 (2010).
Department issued a notice in 2011 proposing a regulation
defining "smoking" on airplanes to include
e-cigarette use. See Smoking of Electronic
Cigarettes on Aircraft, 76 Fed. Reg. 57, 008, 57, 009 (2011).
The notice described e-cigarettes as consisting of three
parts: "The replaceable cartridge, which most often
contains liquid nicotine but may contain other chemicals, the
atomizer or heating element, and the battery and
electronics." Id. When the user inhales through
the mouthpiece, "the electronics detect the air flow and
activate the atomizer, the liquid nicotine is vaporized, and
the user inhales the vapor." Id. at 57, 010
(citation omitted). Although the Department noted that
e-cigarettes heat rather than burn the liquid nicotine
solution and produce a "vapor, rather than smoke, "
it claimed that e-cigarettes involve an "inhalation and
exhalation similar to smoking cigarettes." Id.
at 57, 009-10. The liquid nicotine solution is
partly derived from tobacco plants and some evidence
suggested that the exhaled nicotine vapor could harm
non-users. Id. The Department therefore saw "no
reason to treat electronic cigarettes any differently than
traditional cigarettes." Id. at 57, 009.
Department rested its authority for the regulation on the two
sections authorizing past aircraft smoking regulations.
Id. The first prohibits "smoking" on
scheduled passenger flights within, to, or from the United
States. 49 U.S.C. § 41706. The second is the current
iteration of the "safe and adequate" statute: it
states that an "air carrier shall provide safe and
adequate interstate air transportation." 49 U.S.C.
§ 41702. The Department invited comments on its
statutory authority and the soundness of the rule. 76 Fed.
Reg. at 57, 009, 57, 010.
receiving more than 1000 comments, the Department issued its
final rule defining e-cigarette use as
"smoking." The Department focused on the similarity
between conventional cigarettes and e-cigarettes. "Like
traditional smoking, e-cigarette use introduces a cloud of
chemicals into the air that may be harmful to passengers who
are confined in a narrow area within the aircraft cabin
without the ability to avoid those chemicals." Use of
Electronic Cigarettes on Aircraft, 81 Fed. Reg. 11, 415, 11,
420 (2016). Several studies "detected toxic
chemicals" from the vapor produced by e-cigarettes.
Id. The Department acknowledged that the
"specific hazards" of e-cigarette vapor have not
"yet been fully identified, " but given the unique
setting of air travel, it found a "precautionary
approach" warranted. Id. The Department added
that even "if second-hand exposure to e-cigarette"
vapor were ever determined safe relative to tobacco smoke,
"nearby passengers may still experience discomfort,
stress or . . . display aggression or fear because they
believe their health is threatened." Id. at 11,
424. The Department also noted that airlines on their own
already forbid e-cigarette use: "99 percent of passenger
enplanements occur on flights that prohibit smoking of any
type, including both traditional cigarettes and
e-cigarettes." Id. Incorporating these and
other considerations into a qualitative cost-benefit
analysis, the Department found the regulation warranted.
Id. at 11, 422, 11, 425-26. It relied on the two
statutory sources discussed above. Id. at 11, 419.
final rule defines smoking as the "use of a tobacco
product, electronic cigarettes whether or not they are a
tobacco product, or similar products that produce a smoke,
mist, vapor, or aerosol, with the exception of products
(other than electronic cigarettes) which meet the definition
of a medical device in section 201(h) of the Federal Food,
Drug and Cosmetic Act, such as nebulizers." Id.
at 11, 427. The rule defines "smoking" for §
41706 as well as for Transportation Department and Federal
Aviation Administration regulations. See 14 C.F.R.
§ 252.3; 14 C.F.R. § 121.317.
Competitive Enterprise Institute, the Consumer Advocates for
Smoke-Free Alternatives Association, and Gordon Cummings
petitioned for judicial review. See 49 U.S.C. §
46110(a). Cummings submitted a declaration stating that he
had used e-cigarettes on flights in violation of airline
policies, but that he now no longer does so given the
penalties for violating the regulation. See Decl. of
Cummings at 1-2. See also 49 U.S.C. § 46301
(civil fine); 49 U.S.C. § 46316 (criminal fine). He has
standing to challenge the rule. See, e.g.,
Energy Future Coal. v. EPA, 793 F.3d 141, 144 (D.C.
Cir. 2015). See also Americans for Safe Access v.
DEA, 706 F.3d 438, 443 (D.C. Cir. 2013).
the Department claimed in the rulemaking (and in its brief)
that 49 U.S.C. § 41702 and § 41706 provide
alternative authority for the rule, the sections are not
co-extensive. The k e y difference is in their geographic
scope. Section 41702 requires that an "air carrier"
- defined as a "citizen of the United States undertaking
. . . to provide air transportation, " 49 U.S.C. §
40102(a)(2) - "provide safe and adequate interstate air
transportation." The prohibition "against smoking
on passenger flights" in § 41706, on the other
hand, covers both domestic and foreign air carriers for
travel within, to, and from the United States. Because the
regulation purports to extend the e-cigarette prohibition to
this latter category of flights, see 81 Fed. Reg. at
11, 419, we must first analyze whether § 41706 provides
authority for the rule.
begin with Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837
(1984). We first ask whether Congress addressed
the question at issue: does "smoking" in §
41706 cover e-cigarette use? See Nat'l Mining
Ass'n v. Kempthorne, 512 F.3d 702, 708-09 (D.C. Cir.
2008) (citing Chevron, 467 U.S. at 842-43). If
Congress did not address the question, we next consider
whether the Department's interpretation is reasonable.
petitioners' arguments and those of the dissent is the
point that e-cigarettes did not exist in 1987 when Congress
first made it unlawful "to smoke" on certain
flights under two hours, nor did e-cigarettes exist in 2000
when Congress extended the prohibition. Although this means
the legislators did not have e-cigarettes in mind when
passing those statutes, that does not resolve the
interpretive question. The text itself, rather than the
subjective intentions of legislators, governs our review.
See Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 79 (1998). We must ask whether the term
"smoking" in a statute enacted before modern
e-cigarettes existed covers these devices.
maintain that "smoking" in § 41706 requires
lighting or burning and does not encompass the heating that
occurs with e-cigarettes. The statutory text alone offers no
support for that position. Section 41706 employs the verb
"smoke" in various formulations. Subsection (a)
states that an "individual may not smoke" on
certain domestic flights. Subsection (b) states that the
"Secretary of Transportation shall require all air
carriers and foreign air carriers to prohibit smoking"
on certain foreign flights. Nowhere in § 41706 or Title
49 is "smoke" or "smoking" defined. The
final subsection of § 41706 states: "The Secretary
shall prescribe such regulations as are necessary to carry
out this section." 49 U.S.C. § 41706(d). Whether
the regulation before us constitutes a permissible
application of the Department's rulemaking authority is
thus unclear from the text alone.
the few textual clues in § 41706 itself, both parties
turn to external sources. What do the dictionaries say?
Petitioners cite definitions of "smoking" that
require burning. They invoke Merriam-Webster's Collegiate
Dictionary 1109 (10th ed., 1993 and 1995), for instance, for
the proposition that to smoke means "to inhale and
exhale the fumes of burning plant material and esp.
tobacco." Other dictionary definitions support the
Department. One definition in the Oxford English Dictionary,
for example, defines smoking as to "inhale (and expel
again) the fumes of tobacco, or other suitable substance,
from a pipe, cigar, or cigarette." 15 Oxford English
Dictionary 802 (2d ed. 1989). (Definitions of
"fume" often refer to vapor and do not require
fire. See, e.g., 6 Oxford English Dictionary 258-259
(2d ed. 1989).) Webster's Third New International
Dictionary 2152 (1981), similarly defines smoking as to
"inhale and exhale the fumes of tobacco or something
resembling tobacco from a pipe, cigar, or cigarette."
These definitions are not only contemporaneous with the
original 1987 statutory smoking prohibition, but they also
describe e-cigarette use: one typically inhales and exhales
vaporized nicotine, derived from ...