Bloomberg Law: Boeing Safety Investigators Must Find Root Causes, Not Scapegoats

Published January 18, 2024 in Bloomberg Law

Baker Botts’ Steve Solow urges safety investigators and enforcers after mishaps like the Boeing 737 Max 9 Alaska Air flight to identify root causes and solutions on the path to determining liability.

We now know that several Boeing planes, beyond Alaska Airlines Flight 1282, have “plugged” exit panels that had loose bolts, and that there was also “loose hardware” on other Boeing 737 Max 9 planes that were in service. Were these failures a crime?

Twenty-five years ago, I was part of a team of federal prosecutors that obtained the conviction of a major airline company. As part of the plea agreement, the company admitted it had improperly shipped hazardous materials on passenger planes. Our investigation began when passengers sitting on the tarmac became sickened and had to be evacuated because of the fumes from hazardous materials in the plane’s cargo hold.

Just two years earlier, the 1996 ValuJet Flight 592, which resulted in the deaths of 110 people, had led to both state and federal prosecutions. In that case as well there were issues related to the handling of hazardous materials. Yet even with that case still in the news, our criminal prosecution was considered aggressive. Both industry and federal regulators pushed back, asking whether criminal prosecution was appropriate for a regulatory violation. Some argued that our criminal investigation would interfere with effective safety inquiries as it would discourage employees from cooperating with safety investigators.

We disagreed, in part because the record showed a failure by the airline to effectively address problems known to the airline in advance. We also believed the safety regulators’ argument was weakened by their own shortcomings. The relevant safety agency had identified similar issues years before and told the airline to address them, but clearly the safety agency didn’t require steps that were sufficient.

Then as now, a series of questions present themselves, and then, as now, Boeing, its contractors, the airlines that use their planes, and the federal regulators and enforcers need to consider three seemingly simple questions. What did everyone know and when did they know it? What was the root cause of the problem? What is the solution to the root cause?

In seeking to answer the first question, the “what” must be broadly defined. There may be efforts to narrow the “what” too much. There may be statements and assertions that this incident was a manufacturing defect by a contractor. Or a failure of oversight by a contractor. But to identify root causes, it’s necessary to first identify all possible proximate causes, and all that was known about this event and other shortcomings and near misses.

Which leads to the second question, and a widely misunderstood term: “root cause.” In case after case, a root cause is described as the result of a “manufacturing defect,” “operator error,” or “a need for better training.” These are not root causes.

Things that are causal in nature—failure to properly secure and tighten bolts, failure to inspect completed work, failure to adequately oversee contractors—are symptoms. And the risk of failing to get beyond symptoms to what caused the symptoms to present themselves should be clear: the risk that the root cause will present itself in another way, and this time it may result not in a near miss, but in a disaster.

This leads to a key component of a thorough root cause analysis that’s even more difficult to pursue: reliably assessing the underlying culture of the relevant organizations—Boeing, the contractors, the airline. Culture is widely understood as the most likely source of repeated failures, including failures across different regulatory programs by the same entity. But while understood as critical to compliance, it isn’t often assessed effectively.

I recently served as a federal monitor, overseeing the compliance efforts of a company of over 100,000 employees. Until the company and I agreed to perform a thorough and reliable culture survey, finding a remedy to their persistent compliance problems was left to guesses. Somewhat educated guesses, but still guesses. Which leads to the third question.

What is the solution? Without a thorough understanding of the true root causes, including problems associated with the culture of the businesses involved, finding a solution becomes more a matter of guesswork. Where a wrong guess could mean a future disaster, all involved should support the most thorough of inquiries and consideration of a broad range of solutions.

Whether this includes criminal liability, changes in corporate governance or leadership, or other remedies—such as independent monitors or other external oversight—requires a true root cause analysis. At the same time, safety regulators must assess themselves and whether their efforts have been effective, a task most often undertaken by inspectors general.

Twenty-five years ago, we concluded that the airline and the safety regulators had fallen short, and that was a factor in deciding to use the criminal enforcement process. Since that single prosecution, I’m not aware of similar problems of hazardous waste shipments on US commercial passenger flights resulting in the harm we sought to prevent.

But I can’t say with certainty that our criminal prosecution addressed the root causes of the underlying compliance and safety failures that brought about our case. Today, there’s a clearer pathway to finding root causes, pursuing appropriate remedies, and ensuring oversight. Let’s hope all involved follow that route.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Steve Solow is an attorney at Baker Botts and former state and federal prosecutor. He was chief of the DOJ Environmental Crimes Section and has served as a court-appointed monitor.