FAA and the Boeing 737 MAX
March 26, 2019
By: Justin T. Green, Partner
CNN Op-ed by Co-Chair of the Plaintiffs’ Executive Committee, Kreindler partner and CNN aviation analyst Justin Green
We have enjoyed living in the safest time for aviation travel in history, and Boeing and the Federal Aviation Administration (FAA) deserve much of the credit for that. The recent crashes of two Boeing 737 MAX airplanes, however, demonstrate that aviation would be even safer if the FAA acted more swiftly and decisively after an airline disaster to address identified safety hazards.
The FAA could make everyone safer if it fulfilled its duty to independently confirm the safety of new designs rather than over-relying on manufacturers to certify their own aircraft.
Lion Air Flight 610 crashed on October 29, 2018, taking 189 lives. Preliminary information from the investigation tells us that in the minutes before the crash, the pilots fought a terrifying battle with the airplane’s Maneuvering Characteristics Augmentation System (MCAS), which repeatedly pushed the nose of the airplane down toward the ocean.
The reason? One of the airplane’s angle of attack sensors fed erroneous information to the MCAS, causing it to “believe” that the nose of the airplane was too high. This then triggered the MCAS to repeatedly push the airplane’s nose down.
The Lion Air investigation quickly identified the MCAS problem and revealed that pilots did not have sufficient information and training about the system. The investigators also shockingly learned that other pilots flying the same airplane the day before had faced a similar MCAS problem, but that those pilots, with the help of an off-duty pilot who happened to be sitting in the cockpit’s jump seat, were able to diagnose the problem and to shut off the MCAS.
The FAA chose not to ground the Boeing 737 Max, even though the Lion Air disaster revealed the MCAS problem and that 737 Max pilots were likely not sufficiently trained about the MCAS and how to respond to emergencies that it could potentially cause.
As such, airlines all over the world continued to fly the airplane until Ethiopian Airlines Flight 302, another 737 Max 8, crashed on March 10, 2019, taking 157 lives.
Following the March 10 crash, Ethiopian Airlines immediately grounded all of its Boeing 737 Max 8 airplanes and other airlines soon followed suit. On March 11, China and Indonesia ordered the grounding of all 737 Max 8 airplanes.
On March 12, The European Union Aviation Safety Agency grounded all Boeing 737 Max 8 airplanes in Europe. That same day, Boeing CEO Dennis Muilenburg called President Donald Trump to assure him that the 737 Max 8 was safe, and Secretary of Transportation Elaine Chao flew on a 737 Max 8 from Austin, Texas, to Washington, DC, presumably to display her confidence in the airplane’s safety.
That same day — March 12 — acting FAA Administrator Daniel Elwell issued a statement that the FAA had found “no systemic performance issues” and had “no basis” to ground the airplane. The next day, however, Canada grounded the airplane, and later that day Trump announced that the U.S. would ground the Boeing 737 Max 8 and 9 airplanes. The FAA claimed that new information caused the U.S. to finally act, but the similarities between the two disasters were apparent when Flight 302’s flight track was released soon after its crash.
The U.S. followed rather than led the response to the Ethiopian Airlines disaster. It was not our finest hour.
The Federal Aviation Act provides the FAA with the authority to issue regulations in order to establish “minimum standards required in the interest of safety … for the design, material, construction, quality of work, and performance of aircraft …” The FAA must review the designs of aircraft produced in the U.S. and certify that the designs meet the applicable minimum standards.
The FAA has increasingly delegated its duty of certifying aircraft designs to aviation manufacturers. The FAA relies on aviation manufacturers because they have the technical knowledge and experience necessary to understand complex aircraft designs and because the FAA lacks the resources and expertise necessary to conduct the reviews on its own.
In theory, the FAA leverages manufacturer assets and expertise, but still conducts a meaningful review before certifying a new design. In practice, aviation manufacturers, like Boeing, are performing the review process with limited FAA oversight.
The Boeing 737 Max 8 crashes have brought much-needed public attention to the all too cozy relationship between the FAA and the aviation industry. Only days after her flight on a Boeing 737 Max airplane, Secretary Chao requested that her department audit the FAA’s certification of the airplane.
According to CNN, the Justice Department has issued subpoenas to Boeing as part of a criminal probe, although it is unclear at this point what, if any laws, may have been broken. And Congress will hold hearings to investigate the disasters and the FAA’s certification of the Boeing 737 Max airplanes.
Aviation safety should be the paramount concern in the aftermath of the Lion Air and Ethiopian Air tragedies.
This means that the FAA must reevaluate its relationship with the industry. It should issue regulations that require aviation manufacturers to ensure that their products are free of defects, because the FAA has never enacted regulations to require comprehensive standards governing the design and manufacture of aircraft.
Even if the investigations determine that the MCAS design was unsafe and caused the two disasters, Boeing may still be able to argue that it did not violate any of the existing federal regulations in designing and producing the system and, therefore, is not legally responsible.
The FAA must also review all of the safety devices and systems that Boeing and other manufacturers offer as optional features and require that the features be installed in all aircraft if they would improve safety. The two Boeing 737 Max 8 crashes may have been prevented if the optional safety features had been installed in the airplanes and had warned the pilots about the malfunctioning angle of attack sensors.
I am confident that Boeing’s design changes and the improved information the company will provide to its customers regarding the MCAS will permit the Boeing 737 Max 8 and 9 airplanes to fly again soon and safely. I hope that the lessons learned from the two tragedies will result in more robust safety regulations and better safety oversight by the FAA. But I fear that we all will soon move on to other things and the FAA and the aviation industry will go back to business as usual.
Justin T. GreenJustin Green serves as the Co-Chair of the Plaintiffs’ Executive Committee for the ongoing litigation against Boeing Co. following the 2019 crash of the Boeing 737 Max in Ethiopia. Justin is a prominent Aviation Analyst for CNN and is featured in dozens of on-air TV news segments regarding the Boeing 737 MAX disaster. Having authored many influential articles and CLE courses, Justin is seen as an authority on aviation law and is often invited to speak before legal organizations across the country.