According to the Federal Aviation Administration, there are approximately 7,000 aircraft in the air over the continental US at any given time. That looks something like this. Congress has claimed sovereignty over U.S. airspace and has given authority to the Administrator of the FAA to “develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace.” 49 U.S.C. § 40103.
So what does this mean for our flying superheroes?
Let’s start with a purely practical question: is it at all safe to have flying superheroes? Ignoring for the moment whether it is safe for the superheroes themselves (given what they’re usually up to when flying, the answer seems to be “obviously not,” but that’s their own business), is it safe to have people like Superman, Iron Man, Batman, or the X-Men just jetting around willy-nilly?
Assuming that our heroes are not terribly likely to crash absent the malicious activity of a supervillain, which the stories suggest is generally the case, then the answer is a qualified “Probably.” Seven thousand aircraft seems like a lot, but that works out to 0.002 aircraft/sq. mile in the lower forty-eight. Add to that the fact that airspace is a volume, not a flat surface, and the odds of actually coming anywhere near another aircraft are pretty damn low. Even allowing for crowded airspace around the major urban areas where most superheroes tend to operate, the airspace still isn’t exactly crowded.
As it is, air travel is remarkably safe. “General aviation,” i.e. aircraft operated by people other than commercial airlines, is about an order of magnitude more dangerous than commercial airline travel, and even there we’re talking about less than two fatalities per 100,000 hours of travel. Commercial airline accidents are measured in terms of accidents per million hours. In both cases, the vast majority of accidents involve either 1) taking off/landing, or 2) hitting the ground. Actual collisions between aircraft in the air are really, really uncommon, particularly outside the immediate environs of an airport. So having a couple of guys flying around on their own, even without the assistance of air traffic control, doesn’t seem like it would significantly impact air transit safety, especially if our heroes don’t do this.
Safety issues aside, there are significant legal issues for flying superheroes. Air transportation is one of the most highly regulated activities out there–nuclear energy and nursing homes are even more tightly regulated, but not much else would probably qualify–and it starts with the fundamentals: all “aircraft,” defined in 49 U.S.C. § 40102(a)(6) as “any contrivance invented, used, or designed to navigate, or fly in, the air,” must be registered under 49 U.S.C. § 44103 before it may be operated.
A key word here is “contrivance.” Superman and several other characters don’t need any sort of contrivance to fly. They can simply do it. It seems pretty clear that this type of character would be entirely exempt from FAA registration requirements–if not FAA jurisdiction entirely–because it does not involve the use of an “aircraft,” and federal aviation statutes and regulation are largely targeted, not at flying as such, but at the operation of aircraft. Though the thought of a federal inspector attempting to certify Superman’s “airworthiness” is rather amusing. So as it stands, the law probably does not apply to superheroes who can fly under their own power, such as Superman, but superheroes who rely on flying suits or more traditional aircraft would fall under the law.
So as soon as Tony Stark leaves the ground in the Iron Man suit, he’s in violation of federal law unless he has registered it with the FAA. Same goes for Bruce Wayne and the Batcopter, the X-Men and the Blackbird, etc. In order to be registered, an aircraft must meet FAA airworthiness standards, set forth in 14 C.F.R. §§ 21-39. The engine requirements alone include several dozen sub-sections. And while it seems likely that any craft operated by a superhero would probably pass with flying colors, getting that certified by the FAA probably means letting someone inspect it. Which makes keeping it a secret pretty difficult.
Note that while the FAA does have much-reduced regulations for certain classes of aircraft (particularly the ultralight class), few if any flying superheroes would qualify. For one thing, an ultralight is limited to flight over unpopulated areas and a top speed of just 55 knots (64 mph), which would be of limited use when fighting crime, to say the least.
There is another way of getting your plane legal: the military also has jurisdiction over US airspace, and military aircraft are not subject to the FAA’s jurisdiction. Not registration, not airworthiness, not flight plans, nothing. Of course, only military aircraft and military personnel fall under the military’s jurisdiction, and the vast majority of our heroes seem to be civilians. Even those with official government contacts, e.g. the Avengers, seem to act as civilians at least part of the time. Besides, it is vanishingly unlikely that the military would agree to extend its aviation jurisdiction to protect aircraft it does not actually control, especially if said aircraft involve technology to which the military does not have access. If anything, the “benefits” of military aviation jurisdiction might be a bargaining chip the Pentagon could use to encourage superheroes to share their toys.
Flying superheroes do not seem to pose any inherent risk to air transport, as airspace represents a massive volume, the vast majority of which is empty at any given time. As superhero characters can be presumed to use adequate caution when flying or operating their aircraft–they’re the good guys after all–the odds of an incident endangering another aircraft are actually pretty minimal. That aside however, there are significant legal problems in operating aircraft outside the legal system, registration being the first of them, though characters that can fly without the assistance of mechanical devices are probably okay on that front.
Up next in this series: flight plans and more!