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16 January 2025

The Potential Impact Of The Loper Bright Decision On The NTSB

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The recent U.S. Supreme Court decision in the Loper Bright case stands to have significant ramifications for various federal agencies, including the National Transportation Safety Board (NTSB or Board).
United States Transport

The recent U.S. Supreme Court decision in the Loper Bright case stands to have significant ramifications for various federal agencies, including the National Transportation Safety Board (NTSB or Board). The ruling centered around the scope and limits of regulatory authority and could lead to substantial changes in how the NTSB operates and enforces its mandates.

Background of the Loper Bright Decision

The Loper Bright case was a landmark decision that scrutinized the extent of deference courts are required to give a federal agency's interpretations of its own regulations, commonly known as "Chevron deference." The Supreme Court's ruling emphasized a stricter interpretation of statutory authority, limiting the discretionary powers of agencies in areas where Congress has not explicitly granted authority. This decision is poised to alter the landscape of administrative law, necessitating a careful examination of how federal agencies conduct their regulatory functions.

Implications for the NTSB

As an independent federal agency responsible for investigating transportation accidents and promoting transportation safety, the NTSB may face several challenges as a result of the Loper Bright decision. The primary impacts could include:

Increased Scrutiny of Investigative Procedures

The NTSB's investigative procedures may come under increased scrutiny, requiring the Board to ensure that its actions are firmly grounded in statutory authority. Challenges can be expected with regard to how and when the NTSB allows entities it investigates to release information that the entity already had before an accident. Although the NTSB's enabling statute does permit the agency to determine the manner in which its investigations are conducted, including who may participate in the investigation, see 49 U.S.C. Section 1134(d), the statute is not as prescriptive when it comes to the Board's longstanding practice of prohibiting the release of what it classifies broadly as "investigative information."

Under longstanding NTSB regulations, entities under investigation are prohibited from releasing information in the entities' own records absent NTSB approval. Although the NTSB typically works with these entities and eventually gives permission, the restrictions can cause significant frustration during what would otherwise be standard releases, such as during discovery in civil litigation, state and local law enforcement and regulatory investigations, public records requests and statements to the press by the entity itself. Although this prohibition has been challenged before, courts in those instances were bound by Chevron deference. But no more.

It is foreseeable that a plaintiff's counsel, eager to access information from a defendant that is under investigation by the NTSB, will not be willing to wait 12-24 months for the NTSB to allow discovery to proceed. On the opposite side, defendants often want to put out press releases and other information that shows they are not to blame for an accident. Post Loper Bright, both sides may take this opportunity to challenge the NTSB's regulations.

Collaborations and Partnerships

The NTSB often collaborates with other federal agencies as well as industry stakeholders to enhance transportation safety. The Loper Bright decision might necessitate more explicit agreements and clearer delineation of authority in these collaborations. The Board may need to seek additional congressional authorization for joint initiatives or partnerships that involve regulatory actions.

Role of the Department of Government Efficiency (DOGE)

The proposed establishment of the Department of Government Efficiency (DOGE) could further change the dynamics within the NTSB. DOGE's role in ensuring that federal agencies adhere to statutory mandates means that the NTSB's investigative activities may undergo additional layers of oversight. This could both ensure greater accountability and place constraints on the NTSB's flexibility in addressing urgent safety concerns.

With DOGE's involvement, the NTSB might need to prioritize actions that have explicit legislative support while seeking additional approvals for broader initiatives. Enhanced oversight could lead to more rigorous assessments of safety recommendations, potentially delaying their implementation but ensuring they are thoroughly vetted.

Mitigating Potential Challenges

To navigate the potential challenges posed by the Loper Bright decision and the involvement of DOGE, the NTSB can take several proactive steps:

Seek Legislative Clarification

The NTSB can work with Congress to seek clarifications or amendments to its enabling legislation. This would help ensure that the Board's authority during investigations is explicitly defined and aligned with the new legal framework established by the Loper Bright decision. Legislative support could provide the Board with the necessary tools to continue its mission effectively.

Enhance Transparency and Accountability

The Board can enhance its transparency and accountability by clearly documenting the statutory basis for its actions. By providing detailed explanations of how its investigative procedures align with congressional mandates, the NTSB can strengthen its position against potential legal challenges going forward.

Strengthen Interagency Coordination

Improving coordination with other federal agencies and stakeholders can help the NTSB navigate the complexities of the new regulatory environment. By fostering stronger partnerships and ensuring that collaborative efforts are supported by clear and explicit authority, the Board can continue to promote transportation safety effectively.

Conclusion

The Loper Bright decision marks a pivotal moment for federal agencies, including the NTSB. While the ruling presents significant challenges, it also offers an opportunity for the NTSB to strengthen its regulatory framework and enhance its effectiveness. By proactively addressing the implications of the decision and engaging with DOGE's oversight functions, the NTSB can continue to fulfill its mission of promoting transportation safety and preventing accidents.

The shifting legal landscape underscores the importance of clear statutory authority and robust regulatory practices. As the NTSB adapts to these changes, its commitment to safety and excellence is expected to remain unwavering, ensuring that it continues to serve the public and uphold the highest standards of transportation safety.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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