By Corinne Spencer
After recent news stories covering the emotional support peacock stopped by airport security and the attack by an emotional support dog that left a Delta passenger with 28 stitches, the Department of Transportation (DOT) is giving airlines the regulatory means to crack down on any and all pets boarding planes unchecked under the label “emotional support” animals (ESAs).
The Americans with Disabilities Act (ADA) protects owners and their animals from discrimination in public places by requiring most restaurants, hotels, and public services to accommodate the presence of service animals. For purposes of the ADA, service animals are narrowly defined as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” It does not cover ESAs which can be “certified” by various entities without any formalized training required in order to gain designation entitled to some other protections.
The Air Craft Access Act (ACAA) extends similar rules to air transportation allowing passengers with service animals to fly with their animal in the cabin. However, the ACAA currently provides a broader definition of service animal than the ADA by including more species of animals and includes ESAs. This overbroad coverage without distinction between types of aid created a loophole many people take advantage of to designate their pets as ESAs and bring them onto planes under ACAA protection, even if they were not the anticipated beneficiary.
The ACAA guidelines for service animals and ESAs on planes diverge from the general rules for pets on planes which place limitations on size, species, and breed of pet allowed in the cabins. General airline pet policies require most pets to be held in a cargo space on planes, which is pressurized for their safety and often considered more comfortable for pets because they are not cramped in small spaces with human travelers. These policies are intended to promote safety, ease of mobility, and accessibility for others in the plane cabin. However, many pet owners view it as an inconvenience to travel separately. Under the ACAA, service animals are exempt from the policies affecting pet travel and are instead allowed to travel with their owners in the airplane cabin. The protections provided to service animals under the ACAA were created under the expectation that service animals are highly and specially trained and thus would not raise some of the same concerns as normal pets, such as attacking passengers or defecating in the aisle. However, since ESAs receive the same ACAA protection to travel in plane cabins without the same level of training and behavioral obedience required of and demonstrated by service animals, this category of pets has caused major disturbance in terminals and in the air.
Many pet owners began registering their average pets through the National Service Animal Registry or similar registries as ESAs and received certification without meeting any requirements or qualifications. This registry’s site explains that any animal can be an emotional support animal, and they “do not need any specific training because their very presence mitigates the symptoms associated with a person’s psychological/emotional disability.” This certification gets pets access to most flights in cabin under a pseudo-service animal identity. However, when these untrained pets defecate in public spaces, attack bystanders, or cause a scene in the way trained service animals would never do, their legitimacy is questioned. Unfortunately, this has impacted the reputation of service animals as well, making some businesses unwilling to accommodate both types of animals, and sometimes explicitly discriminating against legitimate disabled individuals with service animals.
Through the FAA Reauthorization Act of 2018, Congress specifically asked the DOT to implement new definitions and minimum standards for “service animals” in an effort to clear up the currently broad ACAA.  The DOT has responded with a notice of proposed rulemaking (NPRM) to amend the ACAA guidelines to clarify what qualifies as a service animal and allowing airlines to more readily distinguish between true service animals, ESAs, and regular pets. This would ensure those intended to be protected by the ACAA are protected and also close the loophole that caused this problem to begin with. The DOT proposed regulation, titled, “Traveling by Air with Service Animals” redefines the category of protected animals and offers airlines the ability to set restrictions and ask more questions regarding ESAs. The regulation hopes to respond to requests for clarity in policy, consistency between the ADA and ACAA as well as consistency across the airline industry.
First, the DOT seeks to redefine service animal similar to the ADA as “a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” Additionally, it specifies Service Animal Handlers as qualified individuals with a disability or their safety assistant, to further limit the use of service animals to passengers with disabilities.  In turn, airlines could distinguish between service animals and ESAs, placing ESAs in the same category as pets.
Second, the regulation sets a guideline for approved species. The DOT proposes that service animals be limited to dogs. While it considered miniature horses and capuchin monkeys as secondary options, both were rejected qualifying “service animal” status based on airplanes’ practical space limitations and close quarters, and comments highlighting the rarity at which these animals serve as service animals for traveling individuals. It’s worth noting that this only means that airlines need not permit them unconditionally. Any airline may still accept these animals on board if they choose through make broader policies than the ACAA minimum requirements. Additionally, the DOT decided against breed restrictions in favor of an exception for airlines to always refuse service if any animals pose a health or safety threat. The DOT is still collecting comments on the need for any more limiting restrictions.
The NPRM proposes other general limitations to allow airlines to prioritize the safety of its passengers and staff. These include a tethering requirement so long as it does not interfere with the animal’s service, limitations protecting only one or two service animals per passenger with a disability, and a short list of reasons for which a passenger with a disability and her service animal can be refused service.
The most burdensome impact of the new regulation is a
requirement of government-issued forms to fly with a service animal and provide
proof of the animal’s training and qualifications. 
While this burden will fall on
passengers traveling with service animals, it will likely be outweighed by the
freedom and safety those passengers and their service animals will enjoy due to
the NPRM’s far reaching restrictions on other animals. By reducing the number
of unqualified animals flying freely, service animals will face fewer
distractions and dangers, while also being able to reclaim their positive
reputation that has been stained by ESAs trying to bend the rules.
 42 U.S.C. § 12182(a) (2018).
 28 CFR § 35.104 (2016).
 U.S. Dep’t of Justice, Frequently Asked Questions about Service Animals and the ADA 2 (2015), https://www.ada.gov/regs2010/service_animal_qa.pdf.
 49 U.S.C. § 41705 (2018); 14 CFR § 382.117 (2009).
 See 14 CFR § 382.117(f) (requiring miniature horses, pigs and monkeys to be accepted unless specific factors find the airline unable to do so, however, listing snakes, spiders, ferrets, and reptiles as species that never need to be recognized as service animals).
 See Pets, American Airlines, https://www.aa.com/i18n/travel-info/special-assistance/pets.jsp (last visited Feb. 1, 2020); Pet Travel on Delta, Delta, https://www.delta.com/apac/en/pet-travel/overview (last visited Feb. 1, 2020).
 See Pet Travel Decisions: Questions About Flying Pets in Cargo, Pet Relocation (Dec. 2011), https://www.petrelocation.com/blog/post/pet-travel-decisions-questions-about-flying-pets-in-cargo; Airline Pet Travel in the Cargo Hold, PetTravel.com, https://www.pettravel.com/news_pet_travel_airline_cargo.cfm (last visited Fed. 3, 2020).
 For example, airlines with size or weight restrictions on in-cabin pets cannot impose those limits on service animals. See, e.g., Delta, supra note 6 (“If your pet doesn’t fit in a carrier in the seat in front of you, you can ship your pet with our special shipping service Delta Cargo. Remember, special exceptions apply for passengers traveling with service animals”).
 See Paulina Firozi, An ‘Emotional-Support Dog’ Attacked Him on a Flight. He’s Suing Delta and the Owner, Wash. Post (May 29, 2019, 4:09 PM), https://www.washingtonpost.com/transportation/2019/05/29/an-emotional-support-dog-attacked-him-flight-hes-suing-delta-owner/; Hugo Martín, Emotional Support Animals Snap, Bark, and Cause Disruption, Most Flight Attendants Say, LA Times (Sept. 15, 2018, 10:00 AM), https://www.latimes.com/business/la-fi-travel-briefcase1-emotional-support-animals-20180915-story.html.
 Dawn Gilbertson, American Airlines Flight Attendant Bitten by Emotional Support Dig, Requires Five Stitches, USA Today (July 23, 2019, 6:05 PM) (“Critics have complained passengers are able to get instant certification for an emotional support animal, also called a comfort animal, online, and that many aren’t properly trained.”)
 Nat’l Serv. Animal Registry, https://www.nsarco.com/esa-registration-and-your-legal-rights.html (last visited Jan. 24, 2020).
 See Firozi, supra note 9; Marina Pitofsky, Flight Delayed After Woman Brings ‘Emotional Support Squirrel’ on Plane, USA Today (Oct. 10, 2018, 7:11 AM). In 2018, a USA Today reporter noted the urge for DOT to regulate emotional support animals recognizing that https://www.usatoday.com/story/news/nation/2018/10/10/orlando-florida-flight-delayed-after-woman-brings-squirrel-plane/1587164002/.
 See, e.g., Katrina Tilbury, Fake Service Dogs, Real Problems, AP News (May 16, 2018), https://apnews.com/1a28f8e528424fdca2040ea8139e3014/Fake-service-dogs,-real-problems.
 See Traveling by Air with Service Animals, 84 Fed. Reg. 6448, 6451 (proposed Feb. 5, 2020) (to be codified at 14 C.F.R. Part 382); The FAA Reauthorization Act of 2018, Pub. L. No. 115-254, Sec. 437 (October 5, 2018).
 Traveling by Air with Service Animals, 85 Fed. Reg. at 6448.
 Id. at 6474.
 Id. at 6458.
 Id. at 6453–54.
 Id. at 6458. (“[w]hile the Department proposes to allow airlines to treat emotional support animals as pets rather than service animals, airlines could choose to continue to recognize emotional support animals and transport them for free pursuant to an airline’s established policy.”)
 Id. at 6464–65.
 See id. at 6476.
 Id. at 6475.