When one set of commercial pilots is unable to stop a Boeing jet’s fatal nose dive, “difficult questions” are raised about the safety of these planes. When a second set of commercial pilots is unable to stop another fatal nose dive of that same model plane, the FBI is called in. Suddenly, it becomes obvious to everyone that the “cozy relationship” that has long infected the relationship between regulators and corporations – not just in aviation but in many areas - can have catastrophic consequences and might be criminal. But it shouldn’t take a catastrophe.
Regulatory capture. Revolving door. These concepts are nothing new. Back in 2005 during the George W. Bush administration, for example, a study from the Revolving Door Working Group showed how federal agencies were then captured by the very industries they were supposed to regulate, and were led by a revolving door of industry figures. According to the study, the appointment of corporate executives and business lobbyists to key posts in federal agencies was a rampant problem. Under Obama, things were maybe a bit better but still not good. Under Trump, it’s a calamity.
Shortly after he took office, Trump “signed an executive order that bars former lobbyists, lawyers and others from participating in any matter they worked on for private clients within two years of going to work for the government.” But by last year, according to the Associated Press, Trump had already “issued at least 37 ethics waivers to key administration officials at the White House and executive branch agencies.” For example, “[o]f 59 EPA hires tracked by the AP over the last year, about a third worked as registered lobbyists or lawyers for chemical manufacturers, fossil fuel producers or other corporate clients.” Here are some other examples:
Health and Human Services asked for waivers for senior counselor to the secretary Keagan Lenihan, a registered lobbyist who recently worked for a pharmaceutical and health services company, and for HHS chief of staff Lance Leggitt, who recently lobbied on behalf of his law firm’s health law practice group.
Agriculture Department policy adviser Kailee Tzacz is allowed to “participate personally and substantially in matters regarding the Dietary Guidelines for Americans,” a guide that offers nutritional information and recommendations.…
Although [Craig Holman of Public Citizen] was initially optimistic when Trump issued his executive order, Holman said Wednesday, “It is now quite evident that the pledge was little more than campaign rhetoric. Not only are key provisions simply ignored and not enforced, when in cases where obvious conflicts of interest are brought into the limelight, the administration readily issues waivers from the ethics rules.”
Which brings us back to aviation. To be honest, I naively thought this was one area where the safety interests of regulators, manufacturers and airlines were generally aligned. It couldn’t possibly be in any of their interests to facilitate plane crashes. Airline safety regulation has even been propped up as a model for other industries, like health care. About a decade ago, Health Affairs wrote:
The movement to improve quality of care and patient safety has grown, but examples of measurable and sustained progress are rare. The slow progress made in health care contrasts with the success of aviation safety. After a tragic 1995 plane crash, the aviation industry and government created the Commercial Aviation Safety Team [CAST] to reduce fatal accidents. This public-private partnership of safety officials and technical experts is responsible for the decreased average rate of fatal aviation accidents. We propose a similar partnership in the health care community to coordinate national efforts and move patient safety and quality forward.
CAST includes the FAA, airline groups, manufacturers and pilots' associations. and yup, it still exists.
Silly us, I guess. As explained by Stephen Mihm, associate professor of history at the University of Georgia, in a Bloomberg piece called “The FAA Has Always Played Cozy With the Aviation Industry”:
The FAA is unusual among federal agencies because it was originally established to regulate and promote an industry. This fostered the unusually cozy relationship between regulators and business that has persisted to the present, even as the agency’s official mandate became exclusively focused on safety beginning in the 1990s.
Yet even then, actual fixes to the law and to the FAA’s mandate were largely cosmetic, with the “FAA’s reluctance to act until planes fell from the sky earned it an unfortunate nickname: the ‘tombstone agency’.… [T]he House Transportation and Infrastructure Committee described in 2008 a 'culture of coziness' between industry and regulators that had led to 'malfeasance, bordering on corruption.'"
For example, in the case of Boeing,
[T]he FAA began allowing Boeing and other manufacturers to certify that their systems comply with federal safety regulations. In effect, Boeing employees assumed the role that FAA regulators had once performed. This has undoubtedly lightened the regulatory load on companies, and it certainly comports with the FAA’s original mandate to encourage domestic aviation. But the recent crashes suggest that this ambition may ultimately undercut the safety of airline passengers.
“Miracle on the Hudson” hero-pilot, Captain Chelsey "Sully" Sullenberger was more blunt In a scathing op ed. He first explained that some of the problems are budgetary:
For too many years, the FAA has not been provided budgets sufficient to ensure appropriate oversight of a rapidly growing global aviation industry. Staffing has not been adequate for FAA employees to oversee much of the critically important work of validating and approving aircraft certification. Instead, much of the work has been outsourced by designating aircraft manufacturer employees to do the work on behalf of the FAA. This, of course, has created inherent conflicts of interest, when employees working for the company whose products must be certified to meet safety standards are the ones doing much of the work of certifying them. There simply are not nearly enough FAA employees to do this important work in-house.…
To make matters worse, there is too cozy a relationship between the industry and the regulators. And in too many cases, FAA employees who rightly called for stricter compliance with safety standards and more rigorous design choices have been overruled by FAA management, often under corporate or political pressure.
In the case of the Boeing 737 Max, in 2015, “Boeing was particularly eager to get the plane into service quickly, so it could compete with Airbus’s new A320neo,” writes John Cassidy at the New Yorker:
Early on, employees of the F.A.A. and Boeing decided how to divide up the certification work. But, partway through the process, a former F.A.A. safety engineer told the Seattle Times, “we were asked by management to re-evaluate what would be delegated. Management thought we had retained too much at the FAA.” The engineer said that “there was constant pressure to re-evaluate our initial decisions,” and “even after we had reassessed it … there was continued discussion by management about delegating even more items down to the Boeing Company.”
Even the work that was retained, such as reviewing technical documents provided by Boeing, was sometimes curtailed. “There wasn’t a complete and proper review of the documents,” the former engineer added. “Review was rushed to reach certain certification dates.”
The new revelations don’t stop there. “Federal prosecutors and Department of Transportation officials are scrutinizing the development of Boeing Co.’s 737 MAX jetliners,” the Wall Street Journal reported on Monday. “A grand jury in Washington, D.C., issued a broad subpoena dated March 11 to at least one person involved in the 737 MAX’s development, seeking related documents, including correspondence, emails and other messages,” a source told the paper. (The Justice Department and Department of Transportation declined to comment on the Journal’s reporting.)
Sully concludes his op ed by making what seems like an utterly obvious point: “there is a strong business case for quality and safety, that it is always better and cheaper to do it right instead of doing it wrong and trying to repair the damage after the fact, and when lives are lost, there is no way to repair the damage.”
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