Part of my job is to talk to the news media and help them be accurate in their aviation safety stories. Usually, my quotes are pretty popular, but recently one struck a nerve with a few people. I was working with a reporter from Bloomberg who was writing a difficult piece on U.S. regulatory policy. I said, “If anyone wants to advance safety through regulation, it can’t be done without further loss of life.” That sounds pretty harsh, but I stand by it. I am not calling for more fatalities or more regulation, but drawing attention to the fact that we are going down a very odd regulatory path in the largest aviation nation in the world, and it merits a thoughtful discussion.
Since the 1980s, every American president has issued executive orders requiring U.S. regulators to do detailed cost-benefit studies on every safety regulation. There are lots of things you can use to justify a regulation, but for aviation safety it largely is about pointing to a record of fatalities, and making a case that the new regulation will prevent those fatalities in the future. For every projected life saved, a regulator is allowed about $6.4 million as a credit to offset the cost of implementing the regulation. It takes a lot of lives to offset the costs of even a minor change in the big U.S. airline industry. That makes regulators think long and hard before putting in place new regulations. That isn’t necessarily a bad thing because the airline industry is one of the most heavily regulated industries in the world.
But now we are in a place that no one ever anticipated. No major U.S. airline has had an accident in over a decade. The FAA was barely able to justify the long-awaited fatigue rule, and is now being criticized by Congress for not going further. New rules are needed to do basic things like overhaul outdated training programs and implement safety management systems, but without U.S. accidents, even commonsense rule changes can’t be justified using the standard formula.
A work-around has been to make new safety rules voluntary. The FAA has worked closely with industry over the years, and launched many voluntary safety programs. Some of these voluntary programs would be required by law anywhere else in the world (e.g., flight data monitoring), but in the U.S., the FAA counts on credible airlines to implement them on their own. It is obvious this strategy has been incredibly successful in reducing accidents. The world can learn a lot from this extraordinary industry-government collaboration. But is there a limit to how much can be made voluntary?
A major U.S. airline that implements all the voluntary FAA programs is clearly very safe, but that airline may have to compete with another carrier that decides to cut costs and not implement any of the same programs. The gap between what is legal and what is safe already is large, and it will get bigger.
So that is the tough question: Is this regulatory approach sustainable? Is it fair to the airlines that do everything right? Is it fair to an unknowing public? I don’t know. But I am sure it is a conversation worth having.