The US airline industry challenged DOT rules issued by the last administration that required airlines to disclose certain fees upfront when potential customers search for itineraries, The petitions for review included both constitutional and statutory challenges, as well as procedural challenges.
A motions panel of the Fifth Circuit had stayed the Rule, and today, the Fifth Circuit issued an opinion remanding the rule to the agency, and continuing the stay. But in so doing, the Fifth Circuit rejected most of the airlines’ challenges, including their challenges to the agency’s rulemaking authority, their major questions doctrine challenge, and their nondelegation challenge. The court did, however, conclude that the agency impermissibly relied on new data as part of its cost-benefit analysis, and that the challengers were not given the opportunity to comment on that data. It thus remanded to the agency to give that comment opportunity, while maintaining the stay of the Rule while that process plays out.
As with yesterday’s decision regarding the CARS Rule, the decision likely means that the Biden-era rule will not go forward. But, as in that case, the court did not make any sweeping pronouncements that would gut the agency’s regulatory authority.
