Court overturns ban on fuel cells on planes

The U.S. Appeals Court for Washington, D.C., has temporarily overturned a ban on transporting fuel cells that are used to power portable electronic devices on airplanes that had been imposed by the Department of Transportation.

The decision, in favor of butane fuel cell manufacturer Lilliputian Systems, found that the transportation department’s regulation did not explain why fuel cell cartridges were inherently more dangerous that other flammable material that is often carried on airplanes.

“Lilliputian contends that the prohibition on flammable-gas fuel cell cartridges in checked airline baggage is arbitrary and capricious because the [Pipeline and Hazardous Materials] Safety Administration failed to provide any explanation of its risk assessment methodology, thereby “making it impossible ... to counter the ... unstated rationale,” the court said in its ruling.

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“As a general matter, an agency cannot treat similarly situated entities differently unless it support[s] th[e] disparate treatment with a reasoned explanation and substantial evidence in the record,” the ruling continued.

The court determined that fuel cells are similar to medical and toiletry products that contain aerosol and other flammable, that are allowed to be packed into airline passengers’ checked luggage.

“Both contain the same ... class of hazardous material; if permitted in checked baggage both would be packed by passengers and handled by airline baggage handlers; and when stowed in passenger luggage neither would be subject to the labeling or notification requirements for limited-quantity cargo,” the court said. “Yet flammable-gas fuel cell cartridges are prohibited from airline checked baggage while medicinal and toilet articles containing flammable gas are not.”

The court said it was agreeing with Lilliputian that the prohibition on fuel cell cartridges was a double standard.

“Largely for the reasons Lilliputian suggests, we agree that the Safety Administration has so far failed to provide the required ‘reasoned explanation and substantial evidence’ for this disparate treatment,” the court said.

The court said it was only issuing a temporary order on the ban on fuel cells on airplanes because the pipeline safety agency “because it is ‘plausible’ that the Safety Administration ‘can redress its failure of explanation on remand while reaching the same result.' ”

The full court ruling can be read here.