First passenger rights law is dead – or is it?

The nation’s first passenger bill of rights law may be dead, but efforts to require airlines to treat travelers with the same dignity as prisoners of war or even household pets are alive and well.

The U.S. Second Circuit Court of Appeals struck down New York state's law that forced airlines to provide food, drinking water and working toilets to passengers delayed on the ground more than three hours. Those are roughly the same rights accorded to prisoners of war under the Geneva Convention and that airlines are currently required to extend to animals.

The reaction from airline passengers was swift and predictably hostile. “I guess bathrooms and water are not a constitutional right,” said Andy deLivron, a sales manager from Pottersville, N.Y. “New York’s courts have screwed the public once again.”

Interestingly, the court didn’t say the rights were wrong — how could any court do that? — but instead ruled on the state’s ability to enact the law. Specifically, it said New York doesn’t have the authority to regulate airlines.

Otherwise, the court argued, another state could be “free to enact a law prohibiting the service of soda on flights departing from its airports, while another could require allergen-free food options on its outbound flights, unraveling the centralized federal framework for air travel.”

Permit me an “I-told-you-so” moment. I saw this one coming long ago. My prediction came at a time when saying the New York law didn’t have legs was unpopular. The same thing is likely to happen in other states attempting to pass passenger rights laws, including California. If they’re enacted, they’ll be challenged in court. And the laws might be thrown out.

Or not. The failure of New York’s law, it seems, is all part of the plan to take passenger rights concerns to the Supreme Court — and win. “I would hope that they would demand that this goes to the Supreme Court,” passenger rights advocate Kate Hanni told me after the appellate court’s decision.

Here’s the apparent strategy: The passenger rights movement has encouraged the introduction of new passenger laws in various states, knowing full well that most of them will be tossed out by a court. But one of them might get appealed all the way to the nation's highest court, which would then rule on this important issue — presumably in favor of airline passengers.

As I see it, this may be the passenger rights movement’s last, best chance to change the law. It failed to get a meaningful passenger bill of rights passed in Congress, thanks to the influential airline lobby. But state legislatures are far friendlier to their cause. All it would take to get this one to Washington would be for a Supreme Court justice to have a bad flight. What are the chances of that happening? Better than average, I’d say.

The airline industry has taken up a defensive, and somewhat disingenuous, position. In a statement issued after the New York ruling, the airline industry’s trade group, the Air Transport Association (ATA), had the nerve to call the decision a victory for both airlines and passengers. “The court’s decision vindicates the position of ATA and the airlines — that airline services are regulated by the federal government and that a patchwork of laws by states and localities would be impractical and harmful to consumer interests,” it said. “This clear and decisive ruling sends a strong message to other states that are considering similar legislation.”

Paradoxically, this is both true and untrue. For now, at least, the airlines have the legal high ground in this dispute, even though when it comes to treating their passengers with a minimal amount of dignity, they’ve often taken the low road. Yes, airline services are regulated by the federal government. Yes, having a patchwork of laws by states and localities would be impractical.

But this is hardly a victory for airline passengers. And in hindsight, it might not even be a victory for the airlines.

It is hard to imagine any scenario under which the New York law would have hurt travelers. Airline lobbyists pretending to be passenger advocates have in the past raised the specter of higher air fares, and possibly loss of airline service. But would an airline seriously consider ending flights to New York because of a law? Doubtful. (It didn’t happen in Europe when the EU passed its pro-consumer EU 261/2005 law.) And higher airfares are already here, thanks to record fuel prices.

The airline industry may want to hold off on a victory party. In its decision, the appellate court suggested that in the right court, a passenger law might fly. Calling the goals of the law “laudable” and the circumstances motivating its enactment “deplorable,” the court added, “Only the federal government has the authority to enact such a law.”

And it will probably only be a matter of time before the federal government takes up the cause of passenger rights. Here’s hoping that when they do, they’ll make the right call.

Every Monday, my column takes a close look at what makes the travel business tick. are always welcome, and if you can’t get enough of my column, for daily insights into the world of travel.